Category: Criminal Law

The meaning of ‘institutional corruption’ – how the Daniel Morgan independent panel set about defining the term

26th June 2021

The independent panel report on Daniel Morgan found that the Metropolitan police was – and is – institutionally corrupt.

To dispute this finding – let alone to attempt to repudiate or refute it – requires you to do one (or both) of two things.

Either you have to challenge the facts on which the finding is based – and this is difficult in respect of the Daniel Morgan report, which is comprehensively sourced and footnoted (and all the report’s critical findings would also have been put to those criticised for their response as part of the preparation of the report).

Or you have to challenge the definition itself.

And so this blogpost sets out the definition adopted and then applied by the panel in the compilation of the report.

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The relevant part for the definition is deep inside the report, on pages 1022 to 1025 of this pdf (page numbers 1017 to 1021 of the document itself).

The starting point is the terms of reference for the panel, which included:

‘The purpose and remit of the Independent Panel is to shine a light on the circumstances of Daniel Morgan’s murder, its background and the handling of the case over the whole period since March 1987.

‘In doing so, the Panel will seek to address the questions arising, including those relating to:

‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […].’

(Please note that in this post I break the paragraphs of the report out into sentences for flow and sense.)

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The panel, however, did not just proceed from the terms of reference, but sought to understand what ‘corruption’ meant in this context:

‘The Terms of Reference give a vague formulation of […] the role played by police corruption in protecting those responsible.

‘There are two possible interpretations of this.

‘It could mean that,

‘i. one or more police officers became aware after the murder of who was responsible and protected them; or

‘ii. one or more police officers who were not aware of who was responsible for the murder committed corrupt acts for their own reasons, and in so doing compromised the investigation with the result that there was no evidence capable of proving who was responsible for the murder and of bringing them to justice.’

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The panel then said that it was taking its term of reference,

‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […]’

to mean,

‘whether there was any police corruption affecting the investigation of the murder and making it impossible to bring whoever was responsible to justice’.

Here the panel had regard to the metropolitan police’s own admission that there had been a ‘failure to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice’.

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So that it how the panel was to interpret its term of reference.

But this does itself not tell us what the ‘corruption’ word means.

As the panel noted:

‘The Panel’s Terms of Reference do not include a definition of corruption.’

As the terms was not defined in there terms of reference, the panel had to work out its own definition.

In doing so, the panel looked at other definitions and uses of the word:

‘The Panel has therefore developed its own definition, drawing upon the definitions of corruption and corrupt behaviour used by relevant bodies.

‘Such bodies include the Independent Police Complaints Commission and its successor organisation, the Independent Office for Police Conduct, the National Police Chiefs Council, the College of Policing and the Metropolitan Police.

[…]

‘To inform its analysis, the Panel has drawn upon the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.

‘These inquiries and reports provide important insights into serious failures of a variety of public services, including but not limited to the police, and address the complex issues of accountability and corruption.’

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Having had regard to how other inquires and reports have defined and used the word ‘corruption’, the panel also considered the common definitions and uses of the word:

‘The generic definition of corruption is ‘dishonest or fraudulent conduct by those in power, typically involving bribery’.

‘This definition suggests that for dishonest conduct to amount to corruption the person acting corruptly must be someone in power or exercising powers.

‘This definition would apply to police forces, prison, probation and healthcare services, or other organisations serving the public.

‘In these settings, ‘corruption’ may denote the misuse of authority in terms of deviance from the law, professional norms, ethical standards or public expectations.

‘In common parlance ‘corruption’ is also used to refer to the venal behaviour of persons who do not hold positions of power, but who do have something to sell, or who act as corrupters in that they bribe persons exercising powers to commit corrupt acts: it follows that people within and outside the police may be involved in ‘corrupt behaviour’.’

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Having had regard to these other definitions and uses, the panel then went back to its own terms of references:

‘The Panel’s Terms of Reference require it to consider, primarily, wider questions relating to corruption.

‘It is asked to address:

‘i. ‘police involvement in the murder’.

‘By any reasonable person’s definition, if police officers commit or assist in planning a murder, it is not only the most serious crime of taking a person’s life, but it is also the gravest breach of the duties of a police officer.

‘ii. ‘the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption’.

‘The ‘corruption’ is not explained further, but the Terms of Reference refer to the fact that ‘in March 2011 the Metropolitan Police acknowledged “the repeated failure of the MPS [Metropolitan Police Service] to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice”.

‘iii. ‘the incidence of connections between private investigators, police officers and […] the media and alleged corruption involved in the linkages between them’.

‘To do this, the Panel has adopted an expansive approach to ‘corruption’, including the conduct of the police and the behaviour of other individuals linked to the police or involved in corrupt activity with them.’

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So having considered how the term ‘corruption’ is or had been used elsewhere – from similar reports to common parlance, and having also considered what the word must mean in the context of the terms of reference, the panel then set out the definition of ‘corruption’ for the report.

It was a broad and deliberately flexible definition:

‘The Panel has adopted a broad definition of corruption for the purposes of its work.

‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:

‘The improper behaviour by action or omission:

‘i. by a person or persons in a position of power or exercising powers, such as police officers;

‘ii. acting individually or collectively;

‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :

‘iv. of the individual(s) involved; or

‘v. for a cause or organisation valued by them; or

‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.

‘The Panel has used this definition to consider the conduct of the police officers involved in the investigations of the murder of Daniel Morgan.

‘The Panel includes in its wider definition of corruption some instances of failures on the part of senior officers/managers, acting as representatives of their organisations.

‘The documentation reveals the following wide range of actions and omissions by senior postholders on behalf of their organisations; many of these actions and omissions have been identified in the reports of other independent panels and inquiries:

‘i. failing to identify corruption;

‘ii. failing to confront corruption;

‘iii. failing to manage investigations and ensure proper oversight; 

‘iv. failing to take a fresh look at past mistakes and failures; 

‘v. failing to learn from past mistakes and failures;

‘vi. failing to admit past mistakes and failures promptly and specifically;

‘vii. giving unjustified assurances;

‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’

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The panel were also aware that important in understanding any practical definition is an understanding of what is not included:

‘[…] failings do not all automatically fall within the definition of corruption. Some may result from professional incompetence or poor management.’

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And now the panel comes to what it meant by ‘institutional corruption’:

‘However, when the failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption.

‘A lack of candour on the part of the Metropolitan Police in respect of its failings is shown by a lack of transparency, as well as prevarication and obfuscation.’

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The panel then amplifies or illustrates this ‘institutional corruption” term elsewhere in the report:

‘The family of Daniel Morgan suffered grievously as a consequence of the failure to bring his murderer(s) to justice, the unwarranted assurances which they were given, the misinformation which was put into the public domain, and the denial of the failings in investigation, including failing to acknowledge professional incompetence, individuals’ venal behaviour, and managerial and organisational failures.

‘The Metropolitan Police also repeatedly failed to take a fresh, thorough and critical look at past failings.

‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit and constitutes a form of institutional corruption.’

[…]

‘When failings in police investigations are combined with unjustified reassurances rather than candour on the part of the Metropolitan Police, this may constitute institutional corruption.

‘The Metropolitan Police’s culture of obfuscation and a lack of candour is unhealthy in any public service.

‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit.

‘In the Panel’s view, this constitutes a form of institutional corruption.’

[…]

‘Unwarranted assurances were given to the family, and the Metropolitan Police placed the reputation of the organisation above the need for accountability and transparency.

‘The lack of candour and the repeated failure to take a fresh, thorough and critical look at past failings are all symptoms of institutional corruption, which prioritises institutional reputation over public accountability.’

The report also provides explicit illustrative examples of institutional (as opposed to non-institutional) corruption on pages 1073-1075 of the pdf (page numbers 1069-1071).

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The report describes the careful consideration that went into defining both ‘corruption’ and ‘institutional corruption’.

The challenge, therefore, for those who wish to dismiss the finding of the independent panel that there was (and is) institutional corruption at the metropolitan police is either to deny the examples or to fault its definition and application.

It may be that some of those defending the metropolitan police see nothing (that) wrong in the internal solidarity and reputational protection that the panel describes as ‘institutional corruption’.

That it is not denied that bad things happened, but that they cannot be described as ‘institutional corruption’.

They may just not like such a term being used of such things.

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Given the care with which the panel considered and then defined (and then applied) the word ‘corruption’ that was expressly part of its terms of reference, any casual knee-jerk dismissal will not be sufficient.

A critic has to do better than to shake their head.

As I have set out in this Financial Times video, the panel have made out a substantial charge of ‘institutional corruption’ – and so this now requires an equally substantial response from the metropolitan police.

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How to show that the Metropolitan Police is institutionally corrupt

25th June 2021

In this Financial Times video out today – no paywall! – I have sought to set out how the 1,200 page, three volume independent panel report on Daniel Morgan substantiates the core charge of ‘institutional corruption’ at the metropolitan police.

Please click through and watch it – and leave any comments below.

(The more clicks and views, the more likely I will be able to do more law and policy videos at the FT – so if you value my law and policy commentary, please do have a look.)

https://twitter.com/davidallengreen/status/1408319293364785154

 

Some thoughts on having read the Daniel Morgan independent panel report

22nd June 2021

I have now read and re-read the Daniel Morgan independent panel report, and here are some thoughts that I do not think I have yet seen elsewhere.

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First: corruption and other failings do not only go in one direction.

The problem that is most associated with the Morgan case is that corruption meant that the original investigations did not go far enough.

And this report certainly details the failings of those first investigations.

But what those following the case will perhaps not appreciate is that the later investigations can be regarded as having gone too far.

In particular, the manner in which the most recent investigations went about procuring and even contriving evidence so as to get the prosecutions is uncomfortable reading.

When the court threw out the prosecutions in 2011, it has to be said that the court was right to do so.

There were serious problems about how the prosecution case had been put together.

And botched, over-zealous investigations and prosecutions serve nobody – and even create false hopes

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Second, and I will set out in more fully in a Financial Times video later this week: the panel substantiate their finding of ‘institutional corruption‘.

The panel define this term with care and show what comes – and what does not come – within the definition.

The panel then applies the defined term consistently, and the report provides a number of sourced examples illustrating institutional corruption – and showing implicitly why no lesser term would be as apt.

Those – such as former metropolitan police commissioner Ian Blair – who aver that there is no evidence of institutional corruption either have not read the report or are being dishonest.

The evidence is there – detailed and sourced and evaluated – and it is difficult if not impossible to gainsay that it fulfils the defined term.

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Third: we may know more why the successive investigations and prosecutions failed, but we are no nearer knowing who murdered Daniel Morgan, and why.

If anything, the report shows the weaknesses of a number of theories about why Daniel Morgan was murdered – for example, the claim that Daniel Morgan was about to expose police corruption.

The murder case is still open – and, indeed, the report even points to a couple of new lines of enquiry.

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And finally: some (minor) criticisms.

The numberings of sections and paragraphs of the report are difficult to follow – with paragraph numbering re-starting completely (and confusingly) with each chapter, and this makes it difficult to cross-refer between different parts of the report.

The report should have had a table of recommendations  and conclusions – for currently the recommendations (many of which are important) and conclusions are scattered throughout the report and hard to find.

But these criticisms go to form, rather than substance.

In substance, the report will be hard to dislodge as an indictment, and it needs a stronger defence from the metropolitan police than a pretence that there is no evidence of institutional corruption at all.

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My podcast and FT article on the Daniel Morgan report

16th June 2021

I have done a podcast on the Daniel Morgan report – click here for links to the podcast on various platforms.

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I also have done this piece over at the Financial Times.

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If you have any (non-irksome) questions on either the podcast or the FT piece – or on the Daniel Morgan report generally – ask below as a comment and I will answer if I can.

 

 

 

How the Daniel Morgan independent panel report substantiates its allegation of ‘institutional corruption’ in the Metropolitan Police

15th June 2021

The report of the independent panel into the death of Daniel Morgan – and how every investigation and prosecution collapsed – was published today.

And if you are to substantiate the serious allegation of ‘institutional corruption’ against the metropolitan police both historically and in the present tense then this is how to do it.

The report is solid, detailed, thorough, methodical, sourced, and it cannot be dismissed.

(Even if the report is ignored.)

It makes out a compelling case of corruption throughout the metropolitan police – and not just some dodgy officers at one police station.

But corruption needs a motive – and this is where the report is at its most compelling – it shows how the police were primarily motivated by reputational imperatives at each stage.

And the report demonstrates that this corruption continued with obstructing the work of the panel itself.

Given the weaknesses of a non-statutory inquiry, this is a far better report than one could have reasonably hoped for – and let us hope it brings at last some sense of justice for the Morgan family.

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The report of the independent panel on Daniel Morgan should be published tomorrow – and three things to bear in mind

14th June 2021

Tomorrow the publication is expected of the report of the independent panel on Daniel Morgan.

We do not know at the moment whether the report will be momentous – or an anti-climax.

Many waited anxiously for, say, the Chilcot report or the Meuller report – only for the news to move on to other things within days, if not hours.

But regardless of the response of news organisations to the report, the report will be significant in its nature – even if it is not momentous in its effects.

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The report is about three things.

The first is the 1987 death of a private detective in circumstances so brutal that the passage of thirty-four years cannot diminish the horror.

I do not know whether Daniel Morgan was about to uncover and expose police corruption or not when he was murdered – but the motivation for any murder does not really matter.

Even without what followed in the aftermath of his death, it was a singular murder that has never been properly investigated or explained.

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The second is the messy and corrupt relationships between the private detective industry, the Metropolitan police and the media from the 1980s onwards – as they merrily sold and bought personal information.

Even if Daniel Morgan’s death was not about the potential exposure of corruption, the circumstances of his death was – for those connected with him – something which hanged over everyone involved for over thirty years.

And for some of those connected with him, the murder and its fallout – all those investigations and prosecutions – was no doubt an inconvenience and a perceived ‘problem’ that had to be somehow ‘managed’ while they were all otherwise engaged in the lucrative trade in the supply and purchase of private information.

This is regardless of whether anyone suspected for the murder was actually involved – the investigations and prosecutions never seemed to go away and were, no doubt, a nuisance.

Insofar as this report covers this messy and corrupt set of relationships, it will be the nearest we will probably get to the now abandoned ‘Leveson 2’.

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Third, there is something rather extraordinary that requires an explanation.

Following Daniel Morgan’s murder there were no less than five investigations and prosecutions – all of which collapsed.

Like those castles built by the king in Monty Python and the Quest for the Holy Grail, each successive investigation and prosecution seemingly fell into a swamp – but here a swamp of compromised processes and irregularities and acts of self-protection.

It may well be that there were mundane reasons why each of these five investigations and prosecutions failed – and, of course, investigations and prosecutions fail all the time for all sorts of unexceptional reasons.

But how all these five investigations and prosecutions each toppled over is extraordinary – and extraordinary things require explanations, even if those explanations are themselves not extraordinary.

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I have followed the Daniel Morgan story since 2012 – and I would have blogged more about the case and it possible implications had it not been for the launch of the independent panel inquiry.

The case is potentially a way into understanding what happened at the time between the police and the media and the private detective industry – and how all of this in turn affected public policy and the conduct of the media.

But the human side of this is also crucial.

Alastair Morgan – one of the most decent and determined people you will ever meet – has spent thirty-four years campaigning for justice and to uncover what happened with the death of his brother Daniel and its aftermath.

We should hope the report brings some sense of justice to Alastair Morgan and the rest of the Morgan family.

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Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

11th June 2021

In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.

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What does he mean?

And does he have a point?

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What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.

In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.

What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.

To a certain extent, he has a point.

In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.

And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.

But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.

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Judges and courts are not stupid and naive.

Judges and courts know full well reasons can be artificial and contrived.

The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions. 

The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.

For example – take the decision by the government to seek a prorogation of parliament in 2019.

No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.

And without such a sworn (or affirmed) reason, the government lost the case.

Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.

Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.

But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making. 

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And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.

Awarding a high-value contract to cronies where a nominal (though documented)  exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.

So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.

The pram may well have fallen down the stairs anyway.

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Why is it so difficult to prosecute for the sale and purchase of peerages?

7th June 2021

A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.

This post is not about that person.

I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.

(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)

This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.

It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.

(The one early exception appears to be Maundy Gregory.)

 

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The legislation has one substantive clause that in turn creates two offences.

The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):

‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

Let’s try to make sense of this word-soup.

This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.

This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].

The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].

This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.

The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.

What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.

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The second offence deals with (in effect) the demand-side:

‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.

So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.

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Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.

This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.

All very dramatic.

But nothing came of it.

No charges were brought.

The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.

The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:

‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’

These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.

Nonetheless the CPS insisted:

‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’

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If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.

And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.

There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.

For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.

What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.

For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.

Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.

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Computer says ‘guilty’ – the scandals contained within the Post Office miscarriage of justice scandal

 4th June 2021

One of the successful appeal barristers in the Post Office miscarriage of justice scandal has given a powerful and important speech, which you should click on and read here.

Almost every paragraph contains devastating stuff – mistake and abuse, after mistake and abuse.

So immense a miscarriage of justice was the whole affair that it is difficult to get one’s mind around the scale of what went wrong.

I think there were three particular scandals that comprise the wider scandal – though this is not an exhaustive list.

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One scandal is the extent of what went wrong and how long it took for anything to be put right – the number of people involved and affected, and the length of time it has taken for there to be any justice.

Here it should also be noted that had it not been for exemplary judging in the civil case by Mr Justice Fraser, there may still not be anything approximating any justice in this case.

A huge, horrible system failure of the English legal system.

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A second scandal is just how many managers and lawyers in the Post Office knew that there were injustices – or did not care that there were injustices – but pressed on with the prosecutions and resisting the civil claims anyway.

Here the failure is not so much of a system but of individual professional decisions made by many who could and did know better.

The aggregate effect of all these bad decisions was immense – but each decision could and should have been different.

It is not good enough for those who made those bad decisions to hide behind any system failures – each should be held accountable for their individual decisions.

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A third scandal is the most basic of all – and is more fundamental than the failure of the legal system and the failures of managers and lawyers.

This scandal is about human credulity.

This scandal is about how mere shortfalls on a computer system were capable of being sufficient evidence in-and-of-itself for postmasters and postmistresses to be criminalised.

Computer says: guilty.

Here the scandal is not about systems or decisions – but about the nature of evidence and proof itself.

A problem of general gullibility.

As the appeal barrister Paul Marshall says in his speech:

‘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.’

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Even if the legal system had worked better, and even if Post Office managers and lawyers had made better decisions, there was always going to be a problem if such uncritical deference was given to computer records.

A computer should never be the one to, in effect, pronounce guilt.

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Podcast – discussion with Alex Andreou on the upcoming Daniel Morgan report and its potential significance

31st May 2021

In this podcast released today (but recorded last Friday) I discuss with Alex Andreou the significance of the upcoming Daniel Morgan report – and also the recent attempts by the home office into bullying the independent panel.

Andreou is a superb podcast host, combining a formidable intellect with a luxurious, melodious voice (in contrast to my high-pitched Brummie Wednesday Addams) – and we hope that this will be a useful primer in the run-up to the publication of the report expected in mid-June 2021.

You can hear it on one of the links here.

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Some early reviews:

https://twitter.com/JonathanMolesUK/status/1399319292362035201