The Post Office scandal: as the problem was about non-disclosure, then logically an inquiry with powers to compel evidence is required

1st May 2021

The Post Office scandal is being described fairly as one of the most widespread miscarriages of justice in legal history.

One of the fundamental problems that led to this scandal was non-disclosure.

The managers (and presumably the lawyers) knew information about the reliability of their Horizon software but did not disclose it.

Had that information been disclosed then (depending on the timing of the disclosure) prosecutions would not have taken place, or defendants would have been found not guilty, or convictions could have been more speedily appealed.

And so, given this fundamental problem of non-disclosure, it is remarkable that the government’s response is an inquiry that cannot compel the disclosure of evidence.

Just think about it.

The government’s non-statutory inquiry has its own web page and terms of reference.

And if you read through the documents on the page, what is said is fine as far as it goes.

But it does not go far enough.

For example, one of the terms of reference is expressly in respect of obtaining information:

‘[to b]uild upon the findings of Mr Justice Fraser, by obtaining all available relevant evidence from Post Office Ltd, Fujitsu and BEIS to establish a clear account of the implementation and failings of Horizon over its lifecycle’.

Yet, as where there is blame there will be claims, the various entities mentioned will have reason to not disclose anything which could lead to civil or even criminal liability.

They will have engaged lawyers to advise them on their obligations in respect of the disclosure of information for the inquiry – and that advice would give them legal cover to refusals to share information.

And what goes for documentary evidence goes to witness evidence too, as this tweeter well observes:

What we therefore face is one problem that was caused by non-disclosure being followed by another problem caused by a different type of non-disclosure.

There is no good reason why the inquiry into the Post Office scandal does not have statutory powers to compel evidence.

And, given that non-disclosure was at the heart of the miscarriages of justice, every good reason why it should.

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27 thoughts on “The Post Office scandal: as the problem was about non-disclosure, then logically an inquiry with powers to compel evidence is required”

  1. Every software project for commercial use (I have 30 years experience of mission critical software development for a global IT company, not Fujitsu) keeps records of defects (aka bugs). Defects found during the development and test of the products, and in tracking defects found in the field when shipped to and in use by customers (not necessarily recorded on the same database). The Horizon product must have such logs. If there are any defects found in development or after shipment in the product that might relate to the accounting errors that convicted the SPMs they should be recorded in those logs. The resolution (such as fix released, rejected – such as working as intended, deferred etc), severity (impact on the customers), and when fixes were released, should be available. There might be records of defects that the Horizon software developers were aware of that might have exonerated the SPMs had they been made available to the Defence (or been understood by them if they were). Just as importantly the overall number of defects, their severity, point in the lifecycle they were discovered in, can give an overall impression of the quality of the software and of the robustness of the development processes used to produce and support it.

    Any inquiry into this miscarriage of justice should demand them to determine if defects were known in the system at the time of prosecution. Or if the overall software quality (or lack thereof) might have been grounds for reasonable doubt and undermined the prosecution case.

    Seeking testimony from the project team at Fujitsu would also be a sensible idea as to whether they were aware of any relevant defects or of the software quality.

  2. James West comment is in the nail. So one wonders if those defending the post office staff specifically asked for disclosure on this issue. If so was full disclosure made by the prosecution. I totally concur with DAG’S main point that an enquiry that cannot compel answers to the question of who knew what, when , is not worth doing.

    1. Which explains why The Justice For Sub-postmasters Alliance isn’t taking part and claiming it will be a “white wash” I believe.

    2. Many of the defendants did ask for disclosure but the PO did not oblige and despite that several judges (I don’t know how many) allowed the cases to proceed. This is a regular source of injustice in criminal trials. Hopefully the judges who neglected to enforce this basic right will also be brought to account!

  3. Having followed this case for years I have wondered about the reason for the non-statutory nature of the review.

    I have read the full judgements including the technical appendices and the whole saga beggars belief.

    The post office lack of disclosure even carried on past the end of the horizon trial in that they disclosed some material after the trial had finished but before the judgement and even then, the Clarke advice was not disclosed. Their late disclosure of 5000 known error logs (KELs) was so clumsy that POL were caught misleading the court. Supposed lost drives from a decade before turned out to contain much more recent material.

    It seems extraordinary that Paula Vennels and others were not aware of the Clarke advice soon after it was given.

    So why not a statutory enquiry?

    I can only think that after the Clarke advice (or other warnings that have not been disclosed) the civil servants at the board meeting of POL saw what might be coming down the line.

    It was around this time that the government ministers started using the line “… arms length body …” and other ‘distancing’ phrases. The first use of this language that I have found was by Jo Swinson who was deputy Secretary of State at the time. Mid 2013. (A sure sign that a minister wants distance between themselves and an issue is when the deputy is put at the dispatch box)

    There are a whole series of ministers who must have averted their eyes rather than see what was going on. I wonder what representations, by which ex ministers, were made to Bo Jo when he castrated his promised statutory enquiry.

    So the reason that statutory disclosure of documents has been avoided is possibly because of the revelations going to the heart of government and the civil service that would be revealed.

    Finally, the government still uses a form of words that blames ‘the horizon dispute’ for all the ruined lives as opposed to the malicious prosecutions, lies and the theft of SPM’s money that this sorry business involved.

    1. So why not a statutory enquiry?

      We must remember that Vennells is a “businesswoman”, an Anglican Priest, a CBE and an executive director of several very large retail companies – basically she’s the Tory party in a dress – and as such will be impervious to any direct legal threat.

      Or any compulsion to return the £4.5 million in pay in bonuses she received from POL when she left…

      Because that’s how it works, right?

    2. The Post Office is still owned by the Government, as it has been essentially forever. The office of Postmaster General was created by Charles II, although there was “Master of the Posts” under Henry VIII, and Charles I allowed private citizens access to the Royal Mail, with the first “post office” opening at Cloak Lane in the City of London in 1643.

      When the office was abolished in 1967, the incumbent John Stonehouse became Minister of Posts and Telecommunications. The responsibility came under the purview of the DTI, then BERR from 2007, then BIS from 2009, and now BEIS since 2016, under a succession of junior ministers of different political stripes.

      The current Parliamentary Under Secretary of State with responsibility for the postal service is the Conservative Paul Scully but since 2016 has also included the Margot James, Andrew Griffiths, and Kelly Tolhurst (the status of this position can be judged by the anonymity of these people).

      Yes, under the Coalition, it was the Lib Dem Jo Swinson from 2013 to 2015, and before her Norman Lamb and Ed Davey, under Vince Cable at BIS.

      And at the end of the previous Labour government (remember that?) it was Baron Tony Young (formerly an official of the Communication Workers Union) under Lord Mandelson.

      I’ve not found a simple list of ministers responsible for the postal service back to 2000, but the secretaries of state included Stephen Byers, Patricia Hewitt, Alan Johnson, Alistair Darling and John Hutton.

      One wonders what if anything they were told, particularly when the Horizon program was implemented, or when considering plans for privatisation, or when the Post Office was separated from the Royal Mail.

      More to the point, Paul Vennells only took over at the Post Office in 2012, when there had already been problems for over a decade. Have about her predecessors too?

      This miscarriage of justice is such an affront, it deserves a proper public inquiry with the full panel of statutory powers.

  4. As a layman I find shocking an aspect you do not mention: that the *courts* did not take disclosure more seriously. Paul Marshall (barrister acting for SPMs) covered this in his evidence to the Justice Committee[1]. In the trial of Sheema Misrah ” the defence applied to three separate judges to have the prosecution stopped on the basis that the disclosure given by the Post Office was woefully inadequate and the prosecution an abuse of process…Every one of those applications was dismissed by on grounds that the jury could form their own view of disclosure failure, if any.”

    As a layman I also find it worrying that it has taken so long for the SRA to engage. And wonder if I have missed the BSB.

    [1]https://committees.parliament.uk/writtenevidence/8340/html

    1. Thank you Albert

      You have your finger on it.
      There have been so many failures at so many levels by so many people (it would take long to enumerate these) that I have come to the conclusion that, absent a proper statutory inquiry, the damage to criminal justice in England & Wales will be irreparable and public confidence permanently damaged.

      Part of the problem is that there has been widespread failure by the courts. But in the absence of rigorous analysis, however uncomfortable, the one thing that can be predicted with confidence is that it will be worse next time. The trouble with the Wyn Williams inquiry is that, established as it was before the devastating Court of Appeal judgment of 23 April, that inquiry addresses the wrong questions. The real question is how the courts were manipulated by the Post Office for 15 years with impunity, with catastrophic human consequences? (I could hazard an explanation and have touched on part of this in my evidence to the Justice Committee to which you have kindly referred.)

      In 2011 Vennells was able to tell the government (in a letter to the minister) that the courts invariably sided with the Post Office. Given what is now known, the question is why was that? Systems fail, but it is important to know why. Part of avoiding a repeat entails the justice system acknowledging that it failed the postmasters and Post Office employees. Without that acknowledgement, nothing will change. Part of the problem is that judges aren’t always that good at evaluating evidence – as Sir Richard Eggleston long ago explained and as the Post Office scandal amply demonstrates. Electronic evidence is a particular problem for the courts – the more so since implementation of Law Commission recommendations in 2000. This should be a cause for public concern.

      As I have suggested elsewhere, were the criminal courts aircraft, few would want to would fly.

  5. To me, the alleged conduct is so serious that there must be a suspicion that it could amount to a conspiracy to pervert the course of justice. I believe there have been cases in the past when witnesses have been compelled to give evidence by an inquiry has been ruled inadmissible in court in criminal prosecutions.

    I wonder if this might be a factor. That said, if there is a criminal investigation then that will often stall, or at least limit and inquiry.

  6. Don’t worry no one high up will suffer as a result of this scandal.

    The review will be a wordy whitewash.

    The SPM’s will be collectively patted on the head and fobbed off with a pittance.

    No PO or Fujitsu employee will be prosecuted for perjury or perverting the course of justice. Might miss the honours list this time round but hold tight for the next one.

    Paula Vennels will keep her CBE and her payoofs and go back to telling other people not to lie and be content with next to nothing in her CoE parish.

    And ministers will pat themselves on the back (after washing the hands they patted the SPMs on the head with) and tell themselves how well they’d handled it at minimal cost to the treasury or Tory donors.

    And we’ll all sit here waiting for the next scandal to erupt.

    Just watch.

  7. The other obvious problem is scope. Nothing in the ToR directs the inquiry to look at the prosecution of postmasters (in fact they appear to exclude this) or the approach the Post Office took in covering up failings with Horizon over years (including in the civil litigation). Or to put it as you’ve done in the title: as the problem was about non-disclosure (in various settings), then logically the inquiry needs to be looking into that very issue.

    The only reason for excluding some of this, as other commenters have suggested, would seem to be if it might cut-across any criminal investigations. The Minister was silent on that in Parliament on Tuesday – there’s a story in the DM today saying the Prime Minister has “hinted” the government would look into this.

  8. There is some additional nuance to the lack of disclosure. The Post Office had in place a corporate governance framework that required Internal Audit to provide assurance to the board, and specifically the board’s Audit, Risk & Compliance Committee, that risks to the corporation were being managed appropriately. The Department for Business, Energy and Industrial Strategy (BEIS, the ultimate owner), through UK Government Investments, had a director on the ARC Committee, which should have been pressing Internal Audit to do its job effectively.

    Post Office Internal Audit has therefore always had extensive powers to access any information it deems necessary. Its terms of reference are clear.

    “The purpose of the charter will be to grant Internal Audit unfettered access to staff, data and systems required in the course of discharging its responsibilities to the Committee…
    Ensure internal audit has unrestricted scope, the necessary resources and access to information to fulfil its mandate.”

    Clearly the corporate governance structure failed, and Internal Audit did not demand access to the information it required to see about the unfolding risks. Over many years there was a flow of glaring warning signs that Audit, the ARC Committee, the whole board, and the BEIS could not have failed to notice. Internal Audit had the powers and responsibility to override internal lack of disclosure, and to insist on proper external disclosure, but it did not act.

    So the subpostmasters, and the public, have a right to know why the people within the Post Office with the responsibility to provide assurance about risks, and the power to seize information, sat on their hands. Yet the inquiry lacks the power to demand that they give evidence about their possible (likely) professional failings, or to see the evidence they chose to avoid seeing. Responsibility for this failure of governance leads back to the BEIS, which chose to limit the powers of the inquiry. How fortunate for them, and unfortunate for us.

    1. James, your deep experience and knowledge of the auditing and management of large-scale systemic risk is exactly what a properly constituted inquiry, not into Horizon but into the disastrous mismanagement of the Post Office, including board and ARC failure, urgently requires.
      It’s easy to overlook that the Post Office’s acknowledgement that it can’t afford to pay even the Horizon Shortfall scheme reveals it now to be a failed enterprise – absent government support. Which also exposes the unreality of its formal private status through UKGI – it’s too important to fail. So we have the same kind of problems as we’ve seen, and not resolved, with the banks.

      1. Thank you Paul. The management of risk at the Post Office has clearly been appalling. That is implicitly recognised in the inquiry’s terms of reference; section F refers to governance. However, risk management should have been stated explicitly as being within the inquiry’s scope.

  9. The person who has fought the corner of SPMs from the start has been Alan Bates and to say he is tenacious is not half of it.

    I have gained the impression that he will not let this matter lie until those responsible are made to account for themselves even if he has to live to 150 to do it.

  10. So, where is the justice for the people involved without criminal proceedings against those that allowed the prosecution of them to take place. Those people should be jailed, jailed for a very long time!

  11. Serious question: was anyone in Scotland prosecuted? I ask because, in Scots criminal law and procedure, private prosecutions (which require a Bill of Criminal Letters) are about as common as hens’ teeth. So did Crown Office authorise any prosecutions?

    Would any of this have happened if the prosecutions in England & Wales had been under the aegis of the CPS rather than the Post Office?

    1. As you say the prosecution system, and also the standards of evidence required, are different in Scotland. The situation does not seem to be clear.

      On 30th September the Scottish Criminal Cases Review Commission wrote to 73 people with “criminal convictions potentially affected by the issues arising from the Post Office’s Horizon computer system”, asking them to contact the SCCRC if they believe they were victims of a miscarriage of justice.
      https://irp-cdn.multiscreensite.com/8f56052e/files/uploaded/SCCRC%20News%20Release%20-%20Post%20Office%20Horizon%20Cases%20-%2030%20September%202020_SE6bw9p6Qy6cDDIJn8Yt.pdf

      Five cases are currently being reviewed by the SCCRC. Other subpostmasters have responded to the SCCRC’s letter, so there may be more reviews.
      https://www.computerweekly.com/news/252497665/Potential-miscarriages-of-justice-of-Scottish-subpostmasters-move-to-full-review

      The involvement of the Procurators Fiscal is a very interesting point. I would love to know the extent to which they either pursued or prevented flawed prosecutions.

  12. It’s standard practice in any business handling cash inputs/outputs that at the end of a working day, what’s in the till matches the computer balance. The PO can’t have been correlating the inputs/outputs or they should/would have realised that there wasn’t theft going on, but a system failure of mismatching transactions.

  13. In the context of this saga, I’d like to give a shout-out to Private Eye, who has been mentioning the issues for a good number of years, during which main/lame stream media have been largely silent.

    Whilst it is depressing to read umpteen stories of dodgy dealings and rotten boroughs, it is important that someone is keeping watch!

  14. The Clarke Advice did not come to light during the Second Sight investigation nor during the Bates litigation, and was only disclosed to us in the Appeals after Aria Grace’s letter which identified issues on “tranche 2” of the disclosure. That tells its own story. As yet undisclosed documents from 2013 may reveal much more. I am interested in Lord Arbuthnot’s point: he says that the Post Office’s attitude to the Parliamentary enquiry at that time changed from helpful to obstructive, and he could almost pinpoint the day when it happened. There must be a reason for that, and there may be further documentation evidencing it.

  15. Although I agree with the points raised by DAG in this case, I can’t quite understand why the author does not even touch on a central aspect of this mis-carriage of justice: Compared to other developed western democracies, the British legal system allows few of any means of recourse against the decisions and cases brought on behalf of the Crown against its citizens, unless one has very deep pockets indeed. The powers, means and instruments HMRC or any other government body has far exceed what is available to comparable bodies in other democratic countries, where citizens accused by those bodies have more rights and means at their disposal to defend themselves.

    1. A profoundly important point. As a society we collectively ‘buy-in’ to the notion that the English Legal system is a ‘Rolls Royce’ legal system compared with Continental civil systems and that the jury system guarantees fairness. It is what we tell ourselves and widely believe.

      The frequency of serious miscarriages of English justice – of which the Post Office is merely the most extensive, might suggest otherwise. A bit like the Post Office – we don’t properly evaluate the evidence.

      There is nevertheless no doubt that for commercial disputes, where legal costs are of little or no concern, the English courts provide a high quality mechanism for resolving disputes. But most ordinary people cannot afford to litigate a civil dispute.

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