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| Tim Brentnall |
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.
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| 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.
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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.
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| P. Marshall Esq |
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
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| Alan Bates from the JFSA (l) and Sir Wyn Williams (r) |
The Justice For Subpostmasters Alliance may have inched closer to participating in the Post Office Horizon Inquiry - but there's still one big red line stopping them from getting involved.
Over the weekend, Alan Bates, founder of the JFSA, sent a note to his mailing list, telling members about his "introductory" meeting on Thursday last week with Sir Wyn Williams, the former High Court judge who is chairing the inquiry. The (remote) meeting was also attended by Kay Linnell, a forensic accountant who has advised the JFSA for more than a decade, David Enright, a partner at Howe and Co solicitors and Sam Stein QC, who we recently saw in action representing a number of Subpostmasters at the Court of Appeal.
Mr Bates says the JFSA's participation in the inquiry remains dependent on the issue of compensation, telling members:
"If, as with the original review, the issue of compensation is specifically excluded then it is pointless us taking part, every other issue is secondary to what we are rightfully owed and which has been taken from us."
Sir Wyn apparently made no promises. According to Mr Bates, Sir Wyn:
"stated that he would be preparing a Statement of Approach No 4 which will probably be available in 14 days once key participants have made submissions to him regarding their view of what path the Inquiry should follow. Be assured our legal team will be making a submission, as no doubt will those of POL [Post Office Ltd] and BEIS [the government Business ministry which technically "owns" the Post Office on our behalf]."
Remember last year a senior government source told me civil servants within government didn't want any sort of review or inquiry at all - "they wanted it all to go away".
According to Mr Bates' reading of the inquiry's new powers, Sir Wyn can address at any issue surrounding the scandal he deems important. Mr Bates told his members: "one comment I do recall from the meeting with him is that he hopes to do so ‘Reasonably, Sensibly and Proportionally’."
Whilst the JFSA's position has not formally changed, it seems as if last Thursday's whites-of-their-eyes meeting at least persuaded Mr Bates and his advisors to keep talking, for now.
And if Statement of Approach Number 4 delivers the goods, the JFSA could well be in. In fact, in his note, Mr Bates suggests his members might want to contact Howe and Co in order to be ready to apply for core participant status to the inquiry.
To help them do that, added to the JFSA note is an FAQ from Howe and Co. It is also immensely helpful for any lay person wondering exactly how statutory inquiries operate.
I have reprinted the FAQ below and included the email address for Howe and Co at the bottom of this post, should anyone reading this think they might want Howe and Co to look after their application to be a core participant. As with everything of this nature, this website does not recommend one course of action over another, it just reports it. Other law firms are available.
Howe and Co's FAQ, via a recent JFSA newsletter:
• What is a Statutory Inquiry?
A Statutory Inquiry, simply, is a powerful form of public inquiry, established under the Inquiries Act 2005, and operates under the rules set out in that Act.
A Public Inquiry is a way of independently assessing the facts, events and circumstances which gave rise to a particular failure or problem. They also examine the background of that failure, and make recommendations about how bodies or organisations can improve their performance or prevent a failure or problem from reoccurring. A public inquiry will investigate key issues, taking into account evidence from the documents and witnesses to the facts.
A statutory public inquiry, as opposed to a government review or non-statutory inquiry, is a more formal process (with set legal rules about evidence and witnesses, for example).
• What are core participants?
A core participant is an individual, organisation or institution that has a specific interest in the topics to which the Inquiry relates. They have specific rights and roles as set out in law. Core participants have special rights in the Inquiry process.
Core participants' special rights include receiving early disclosure of documentation, including documents not made public, being legally represented and making legal submissions to the Chair, suggesting lines of questions to witnesses, suggesting evidence to be obtained, and receiving advance notice of the Inquiry's report(s).
It is not necessary to be a core participant in order to provide evidence to the Inquiry.
The Inquiry's Chair will decide who can be designated as a core participant, based on the applications made to him. He makes decisions according to legally-defined rules, but has wide discretion and can take a large number of factors into account.
• What is the role of Sir Wyn Williams?
Sir Wyn Williams is the Chair of the Inquiry. Sir Wyn retired from his role as a High Court judge in 2017 and has undertaken a number of similar judicial and legal roles since his retirement. In conjunction with the Inquiry's dedicated lawyers, he will be the head of the investigation and will be responsible for the procedures of the Inquiry and responsible for drafting its report(s). The Chair's role is comparable to a judge in a legal case, but with a duty to properly and fully investigate the issues to which the inquiry relates.
The Chair of an inquiry is responsible for making key decisions on the setting up and operation of an inquiry. Those decisions relate to:
an inquiry's procedural rules; the granting of core participant status to individuals and organisations; which witnesses to call; requiring that documents be disclosed to the inquiry; finance and timetables of the inquiry; and recommendations, and interim recommendations.
The Chair will also be involved in the selection and appointment of panel members (see below).
• Who are the Chair's panel, and how are they selected?
We do not yet know who may be appointed to the panel. The Inquiries Act 2005 permits an inquiry to sit with a panel. The JFSA can make representations to the Chair as to who panel members should be.
Whilst the decision on panel members ultimately a decision for the government minister, that minister is under a legal duty to consult with the Chair on panel members' appointment.
The Prime Minister withdrew a proposal to appoint a panel member to the Grenfell Tower Inquiry, after Howe & Co objected on behalf of their core participant clients about the panel member's professional history, Now, the Grenfell Tower inquiry's panel contains an architect and health and safety practitioner, as well as a panel member with experience in social housing and local government.
• What are the powers of the Statutory Inquiry?
One of the most significant advantages of a statutory inquiry over a non-statutory inquiry are the powers that are granted to it.
A statutory inquiry has the ability to compel witnesses to attend and give evidence, as well as power to require a company, body, individual or institution to provide documents to it. A non-statutory inquiry has no powers to compel anyone unwilling to comply or engage with it.
A statutory Inquiry can commence criminal action again any person or organisation that refuses to cooperate with it.
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| Boris Johnson |
In response to a question from Seema Misra's MP, Jonathan Lord, the PM said:
"we are determined to ensure that postmasters and sub-postmasters are fairly compensated for what happened"
It's hardly unequivocal, but when put in the context of the question it reads much better. Here is the exchange in full:
Mr Jonathan Lord (Woking) (Con)
"On behalf of my constituent Seema Misra and other wrongly convicted sub-postmasters, I am grateful that the vital inquiry of Sir Wyn Williams into that scandal has now been given more teeth. However, there is widespread concern, shared by Post Office CEO Nick Read, that the compensation received by the sub-postmasters who were party to the civil litigation at the High Court was simply not fair. I urge the Prime Minister to ensure that those civil litigant sub-postmasters will be included in the anticipated Government compensation scheme."
The Prime Minister
"I thank my hon. Friend for raising that issue—a tragic case of injustice. I have met some of the postmasters and sub-postmasters who have been affected by that miscarriage of justice. As he knows, the Government were not party to the initial litigation, nor the settlement that was agreed, but we are determined to ensure that postmasters and sub-postmasters are fairly compensated for what happened."
Emphasis mine.
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| Jonathan Lord MP |
Mr Lord is a member of the All Party Parliamentary Group on the Post Office, which Paul Scully attended on Wednesday evening. I asked Mr Lord both about the question he asked the PM and what he made of Mr Scully's performance at the APPG:
“It was a great opportunity to urge the Prime Minister that there should be proper compensation for the Subpostmasters who were civil litigants at the High Court, and I think that the PM’s response was reasonably positive.
I was also pleased that Paul Scully agreed to be the main guest of the All Party Parliamentary Group on the Post Office on Tuesday evening. It would not be right for me to quote extensively from the private exchanges that took place. However, I have permission from the Chair to report that Minister Scully received frank and robust comments and very searching questions from each of MPs and Peers present on behalf of Subpostmasters and that he listened extremely carefully to all of the points that were made.”
Mr Lord's question follows on from Lucy Allan's question to the PM on 24 March to which Boris Johnson agreed the people responsible for the Post Office Horizon IT scandal should be held accountable. The exact exchange was as follows:
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| Lucy Allan MP (taken from the British Sign Language replay of the debate on parliamentlive.tv) |
Lucy Allan (Telford) (Con)
"My constituent Tracy Felstead is at the Court of Appeal today, along with 41 other sub-postmasters. She is seeking to clear her name in a grotesque miscarriage of justice: the Post Office Horizon scandal. The Court has heard about the “institutional imperative” to back a flawed IT system and to convict sub-postmasters, destroying the lives of decent men and women in a ruthless determination to protect the Post Office come what may. Taxpayers will be picking up the bill for this multimillion-pound reckless wrongdoing. Does the Prime Minister agree that, in order for justice to be truly done, those responsible for this failure and its cover-up must be held to account? Does he agree that heads should roll?"
The Prime Minister
"I certainly understand my hon. Friend’s strong feelings on this issue, and her campaign is shared by many Members across the House. That is why we launched the Post Office Horizon IT inquiry, which has made quite fast progress. Yes, we do want to learn the lessons. Yes, we do want to make sure that the right people are held to account for what happened and that the Post Office never repeats a mistake like this."
Again - my emphasis added for clarity.
Now two High Court judgments and a Court of Appeal ruling have put beyond doubt that Very Bad Things happened to a large number of people, the two outstanding issues are accountability and compensation. The Prime Minister has agreed with campaigning backbench MPs he wants to see people held to account, and now, that he wants to see everyone fairly compensated. The only remaining resistance appears to be from the Whitehall officials (the one who a government source told me didn't want any inquiry at all) who have the most to lose by allowing the Prime Minister and the campaigners to get their way. I hope the PM's endorsement of the campaigners' position makes a difference.
* During a debate to announce the new statutory footing of the Post Office Horizon Inquiry, Mr Scully said:
"On the group litigation settlement, I have talked about the fact that it was a full and final settlement, but I understand exactly where the right hon. Gentleman is coming from. That is not within the scope of the inquiry, but we will continue to look at what we can do to give a fair settlement of compensation for postmasters in the different tranches of the stages of the civil and criminal cases."
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