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.”
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.
