24th April 2021
Following yesterday’s important and immense criminal appeal judgment on the Post Office Horizon case (post here), I have had a look at the preceding civil judgments.
(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)
The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.
The key 2019 judgment is here – and it some 155 pages and 1024 paragraphs.
It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.
Paragraph 929 is a judicial classic.
The judge is a credit to the judiciary.
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But.
That civil judgment is from late 2019.
The criminal convictions were quashed yesterday.
And the wrongful convictions date back to 2003.
This means there has been a wait of, in some case, nearly twenty years for justice.
However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.
Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.
Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.
But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.
And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.
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One or two people have complained about the the legal fees in this case.
It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.
To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.
That the lawyers who did this successfully were remunerated should not be controversial.
And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.
Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.
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There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.
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As a rank amateur, I am curious as to whether the Post Office itself, and/or certain of its employees, could be guilty of perverting the course of justice. It is clear that they withheld crucial information from the courts, and knew that Fujitsu was accessing user accounts.
Like Les I’m interested in the likelihood of criminal charges being brought against those in charge at the Post Office/Fujitsu, who clearly had guilty knowledge that their IT system was faulty. Boris Johnson has stated that ‘”lessons will be learned”, but the scale of the malpractice and the impact on the Postmasters surely merits more than an enquiry, which will be kicked into the long grass at the earliest opportunity.
Perhaps one of the starkest examples of corporate greed in recent times, and there have been a few.
Corporate greed? This feels more like a bureaucratic meat grinder resulting from contempt of “little” people, a culture of blame apportionment and truth avoidance. The Home Office’s hostile environment has strong parallels. The public sector heritage of the Post Office could be much more significant than greed.
I am pleased you mentioned Nick Wallis. I and many others have contributed small amounts to support this cause. In the noughties I was involved in setting up our village Community shop and post office. We were aware that postmasters were being prosecuted for theft etc by the post office and it was a definite turnoff for volunteers to take any sort of responsibility for the post office part of the business.
I have alsways been suspicious of anyone claiming that computer systems are infallible.
I am led to believe that many of the people prosecuted were unaware of the scale of the prosecutions. Nick Wallis shed some light on this and enabled the likes of Mr Bates and others to perform a very unlikely outome in this David vs Goliath confrontation.
Too many people have suffered for far too long in this debacle.
Does this case not also raise concerns about incentives in criminal law to plead guilty (reduced sentence) and the risk of some innocent people pleading guilty because of the apparent strength of the case against them.
On point which I found particularly striking was that they were warned by their own barrister! From https://www.theregister.com/2021/04/23/post_office_scandal_fujitsu_convictions_quashed/ it says:
“Barrister Simon Clarke, who in 2013 warned the Post Office that its behaviour was “in breach of their duty as a prosecutor,” wrote in legal advice to its prosecutors that Fujitsu man Gareth Jenkins had made unjustifiable claims about the system.”
Details at 81 onwards in the judgement
It would be particularly interesting to see how quickly (if at all) sums which were part of the sentences – fines, prosecution costs, confiscation and compensation orders get refunded to the successful appellants. Is there even a mechanism for doing this especially on such a scale? And then there’s bankruptcy orders to undo and all sorts after that.
Then expecting people who in many cases are past retirement age to start malicious prosecution actions, which will end up in a grubby and inadequate settlement like the previous civil action (eaten up by the huge costs with POL deliberately ran up) and not begin to put things right will add insult to injury. but that’s what we’ve come to expect. All they’ll get is an inadequate lump of money and no help with the hassle of things like buying a new house getting moved in and such.
It’ll never happen, but having a commission of people seek out these people, working proactively with them to find what they need to live just a bit more comfortably than they would have done, making it happen and paying back with interest the friends and relatives from whom they’ve borrowed would be a lot cheaper in the end than endless years of litigation and would have the benefit of looking like a genuine attempt to say “sorry”.
Yesterday’s comments referred to Radio 4 in passing. Those who want to query the cost of the lawyer’s fees might like to listen to the ten part Radio 4 programme / podcast available here as the first episode which will then link to the later ones.
https://www.bbc.co.uk/programmes/m000jfyv
Once you listen to this you’ll realise the mountain that had to be climbed to take on the Post Office; the difficulty the post masters had in getting people to take the issue seriously – and that the lawyers who eventually took it on should be applauded. It was a huge settlement but to get there a huge amount of work had to be done. Perhaps the Post office should have had to pay the legal costs as a separate item.
In response to whether or not criminal charges can be brought against POL personnel the answer is yes. As a public body their employees (at least at senior level) are classed as public officers and as such are liable to proceedings under the misconduct in public office Common law. Several years ago I raised a complaint with Surrey Police with regard to Seema’s case and I was interviewed and a docket opened. This was then put on hold until the ccrc reported and has now subsequently been transferred to the Met Police who are also investigating Fujitsu employees for perjury in Seema’s trial. I also informed the POL board of their duties to self report these crimes which they have not done. This part of the scandal is yet to run its course but it will…
It was an utter disgrace and still is. Well worth looking at Nick Wallis blog at postofficetrial.com for more details. Perjury charges against I believe 4 fujitsu witnesses who gave evidence at some of the criminal cases are being considered (Mr Justice Fraser referred the matter to the DPP). Not a single senior manager or director at the Post Office has been disciplined, fired or in any way taken responsibility – instead pensions are awarded, gongs given and lots of platitudes about “lessons learned” etc. Who in their right mind could have thought literally hundreds of postmasters were dishonest when there was not shred of evidence any of them were hiding cash under the mattress or taking luxury holidays/buying fast cars/ new houses etc etc. And when a civil case find the truth eventually got traction the tactics (which must have been approved by the PO board and by implication the Government) were scorched earth/deep pockets litigation to head off the pesky claimants – and it looks pretty clear that at some stage the cover up began…. It needs a proper statutory enquiry not the present feeble one.
Can anyone explain (for a legal idiot!) why the postmasters had to pay their legal fees when they had won in the civil case? I thought the principle was that the loser had to pay?
Because the case didn’t go the distance, they were forced to accept a pathetic settlement out of court which “covered” everything including the costs.
Their legal costs were paid and underwritten by a third party funder ( i.e. a commercial investor in effect) whose funding agreement gives them an entitlement to be recouped out of proceeds won. The settlement deal was not a court order and I don’t know its details but suspect Post Office paid global sum to include costs and liability and funder took its monies owed out of that sum. Before screaming it’s immoral/ wrong/ unethical reflect that ( a) the funder was putting its money on the line – if claimants had lost it was down several 10s of million pounds and ( b) without the funder the postmasters would never have been able to bring the action. The right thing now would be for the Government to ensure all affected postmasters are compensated fairly and that those who were part of the litigation are nor worse off than others because they “settled” and had to repay their funder. Odds on Government won’t do it. As I said before it’s a disgrace.
Since they couldn’t have paid the costs if they lost, I would guess it was the success fee typically claimed in a no win no fee arrangement.
Because the case didn’t go the distance, they were forced to accept a pathetic settlement out of court which “covered” everything including the costs.
Frazer J said on more that one occasion that both parties were putting in over inflated costs orders. How can that be allowed happen ? I was told by the legal team that the funders were taking £4 for every £1 pound borrowed. When I pressed them on their fees they changed that to £7 for every £1 borrowed. It’s all smoke and mirrors from the clients position. I know of no other industry like this