Day 4: The Opposed Appeals

The final day of the four day hearing at the Court of Appeal this week concerned three specific cases whose appeals are being contested by the Post Office.

Stanley Fell was a Subpostmaster at Newton Bergoland Post Office. £19,000 was allegedly missing from his branch. He pleaded guilty to covering it up, and was convicted of false accounting on 27 July 2007 at Leicester Crown Court. He was given a two year suspended sentence.

Wendy Cousins was a Subpostmaster at Hertford Heath Post Office. She was convicted of the theft of £13,000 on 5 May 2009 after pleading guilty at St Albans Crown Court. She was given a nine month suspended prison sentence.

Neelam Hussain worked at West Bromwich Post Office in the West Midlands. She was convicted of stealing £83,000 on the 20 June 2011 after pleading guilty to theft at Wolverhampton Crown Court. She was sentenced 18 months in prison.

All three were considered to have a strong enough case to be referred to the Court of Appeal by the Criminal Cases Review Commission.

Brian Altman, QC for the Post Office, wasn't too sure. Mr Altman was at pains to point out that all the CCRC referrals were made on the basis that Horizon data was an essential aspect of their initial prosecution by the Post Office. 

The CCRC had been able to make referrals on that basis, largely because the High Court found the Post Office's Horizon IT system to be "not remotely reliable" in the first ten years of its existence (and not much better than that until 2017).

Stanley Fell

Stanley Fell, now aged 69, ran the Newton Bergoland village Post Office from 1976 to his eventual suspension in 2006. He was a third generation Post Office worker. Before Horizon arrived there were no problems at his branch. According to his barrister, Sam Stein QC, Mr Fell was: "a mainstay of the community, a real support for those who were infirm or of age."

When a discrepancy of £19,000 was uncovered by a Post Office auditor, Mr Fell 'fessed up. He'd been taking money from the Post Office till (operated by the Horizon system) to prop up his failing retail business, having entered into a disastrous contract with a wholesaler which required him to order £2000 worth of stock a week. 

Mr Fell had also, at an earlier point, used money from his retail business to plug inexplicable holes totalling just over £1000 in his Post Office branch accounts, and it is this his team, led by Sam Stein QC, relied on to paint the picture of a "confused, frightened" man who had lost his way, but did not deserve to be prosecuted for a criminal offence.

Mr Altman was having none of it. He read out several pre-conviction statements in which Mr Fell explained precisely what he had been doing, that is, taking money from the Post Office account to keep his retail business afloat. 

As Mr Altman said: "this is not an unexplained shortfall, it is an explained shortfall."

And it was an explained shortfall with a guilty plea and a series of profound (and rather touching) statements, such as: 

"I wish to offer the Post Office and my family an unreserved apology for my financial negligence but wish to reaffirm without prejudice that at no time have I sought to steal or defraud the Post Office of any stock or cash whilst in my custody.  It has always been my intention to repay the money to the Post Office."

The statements were used by Mr Fell's defence team to display contrition and lack of criminal intent by way of mitigation.

It seems Mr Fell got himself in a pickle, didn't really know what he was doing (Horizon shows he was claiming large amounts of cash on hand in his branch whilst also calling up the Post Office saying he didn't have enough money to run the business) and was happy to explain to the first person in authority what was going on when they came to see him. That (and of course, the shortfall) is what got him a twelve month suspended sentence. 

The moral rights or wrongs of this are a slightly different issue as to whether Horizon data was essential to his prosecution. Mr Stein and the CCRC says it was, the Post Office say it wasn't. You can read the full transcript of Thursday's exchanges here.

Wendy Cousins

Wendy Cousins ran a tiny, but busy branch in Hertford Heath, a few miles south of Hertford in... correct, Hertfordshire. She was turning over between £50,000 and £100,000 a week and was prosecuted by the Post Office for the theft of giro cheques. 

The Post Office say she was keeping back giros which had been cashed by customers at the branch and then reintroducing them the following week and (presumably) pocketing the cash. The overall sum she was said to have stolen was £13,000. 

Ms Cousins initially denied doing anything wrong until the prospect of prison dawned. Then she entered a guilty plea, saying she had been stealing the money to help her sick mother, who needed a stairlift and downstairs toilet. This story itself was a lie. Her mother had not become sick until a year after the alleged offences were taking place.

Again the matter in issue was whether or not the Horizon computer system was essential to Wendy Cousins' prosecution. The CCRC and Ms Cousins legal team believe it was. 

In court on Thursday, Ms Cousins' barrister, Tim Moloney QC, called on the expert evidence of Ian Henderson, one of the directors of Second Sight. 

Mr Henderson said some of the supposedly re-introduced giro cheques did not exist anywhere else but in Horizon and therefore Ms Cousins' system could have been glitching. He referred to a schedule of evidence put together by a Post Office investigator used to prosecute Ms Cousin:

"the first 18 entries on that schedule are not supported by physical vouchers or green giros.  They are supported exclusively, or almost exclusively, by information derived from Horizon. What I am saying is I am quite concerned about the reliability of a prosecution that is relying on, in effect, a single source of evidence in relation to those items. A combination of that, together with the flaws in the identification of beneficiaries, causes me further concern."

Zoe Johnson QC cross-examined Mr Henderson for the Post Office, and made the point that if there were some kind of phantom-duplicating-transactions bug, it would have become immediately apparent to Ms Cousins, because she had to manually reconcile the number of giro vouchers in her possession with the number of transactions on her Horizon terminal every week.

Mr Henderson had an answer for that:

"I have listened to the testimony of well over 100 sub-postmasters. A very frequent event was a problem occurring and when they raised that problem with the help desk. The help desk would say, "Well, don't worry, it will sort itself out next week or the week after". That was a very frequent response from the Post Office to problems. So I am speculating, but I could envisage a situation where, if Ms Cousins found that there was a transaction listed by Horizon that was not supported by one of the giro cheques, she might feel, "Well, don't worry about it, it is going to reverse itself or be resolved next week". That was what many sub-postmasters were told quite frequently."

Ms Johnson pointed out that Wendy Cousins had not made any calls to the helpline about any alleged phantom transactions or dodgy reconciliations. Mr Henderson speculated that one of Ms Cousins' non-reconciled transactions resolving at a future date: "may have been in her mind."

Neelam Hussain

Neelam Hussain found herself caught in a lie - several lies according to her own barrister - and the question remains as to whether she did so to cover inexplicable Horizon losses, or as the Post Office would have it, criminality.

Ms Hussain, a post office manager, pleaded guilty to creating a phantom stock unit within her branch and transferring more than £80,000 in cash into it. At the time, the defence were served with a statement from Fujitsu (which operates the Horizon system on behalf of the Post Office) saying that at all material times, Horizon was working correctly. Christopher Millington QC, Ms Hussain's barrister, told the court it is therefore: "fanciful to suggest that this is not a Horizon case".

He referred to a witness statement from a Fujitsu employee, Penelope Thomas:

"And that witness offered a guarantee of reliability for that data. Had the defendant, as she was then, maintained the not guilty plea, or pleas that had been offered, and decided to have her trial, and had one of the lines of defence to which the respondent had been alerted in the defence statement, namely that the losses may be attributable to computer error, had she pursued that particular line through her counsel, no doubt that would have been met by the evidence from this witness, who guaranteed the reliability of the data that had been produced in support of the prosecution case."

Mr Altman spent some time about Ms Hussain's defence. He told the court that Ms Hussain had initially created the stock units using another colleague's login, then denied she had done it. She also told a colleague she had lost a cheque for £85,000 and said she needed him to let her used his chequebook to write a cheque to cover it. 

There was also an interesting story about taking an elderly lady's cheque for  £50,000 and putting it into the system, but reversing it out two hours later. The next day it was re-entered into the system and £50,000 was taken out in cash. Ms Hussain initially said someone else had done that, and then admitted it was her. The issue only came to light when the elderly lady went back into the branch three months later and asked Ms Hussain where her money was. 

Mr Millington, speaking on behalf of Ms Hussain, said the Post Office were able to rely on evidence which: 

"showed that she had behaved deceitfully on a number of occasions and I concede that she did. They say that she told lies and I concede that she did. She transferred mythical amounts of stock into an account that had nothing in it, she says in order to falsely account for the apparent very large shortfall."

Like Wendy Cousins, in order to mitigate her guilty plea, Ms Hussain made up a story about her mother being sick - Mr Millington again:

"When she was interviewed by a probation officer after the event, she sought to recall a story that all of this cash had gone to fund medical expenses for her mother in Pakistan, which, when investigated, was discovered to be a pack of lies but it was offered in order to curry sympathy with the sentencing judge."

All of this, says Mr Millington, was done to conceal inexplicable discrepancies at Ms Hussain's branch.

Like the 39 appellants whose claims are not being contested on at least one limb of the CCRC's referral, Stanley Fell, Wendy Cousins and Neelam Hussain will find out if their convictions have been quashed in a hearing at the court of appeal on Friday 23 April at 10am. 

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