• Lord Grabiner: Never Mind “That Bollox”

    Lord Grabiner KC

    Lord Grabiner strode into the Inquiry hearing room wielding a walking cane. As he didn’t appear to be using it to support himself it rather gave the impression it might be utilised to punish impertinence. Jason Beer KC, who asked questions on behalf of the inquiry, appeared unruffled.

    Grabiner was called to explore his apparent firm belief that there was something so wrong with Mr Justice Fraser’s Common Issues trial judgment that Fraser should be removed as managing judge of the Bates v Post Office group litigation.

    Grabiner’s ace in the hole was a six page document written by Lord Neuberger on 14 March 2019. This generally supported the idea of putting forward an application to have Fraser recuse himself. Lord Neuberger is no ordinary law lord, he is a former President of the Supreme Court. At the time of writing his “Observations on Recusal Application“, for the Post Office, Neuberger was working for One Essex Court, alongside Grabiner (Head of Chambers) and David Cavender KC, leading counsel for the Post Office during the Common Issues trial. They all, therefore, had skin in the game.

    Both parties had sight of the draft Common Issues judgment on 8 March 2019. The second (Horizon Issues) trial in the Bates v Post Office group litigation began on 11 March. The Common Issues judgment was handed down (made public) on Friday 15 March and the recusal application landed on Thu 21 March. On that date, the trial was adjourned so Lord Grabs could be invited to have Mr Justice Fraser recuse himself on 3 April 2019.

    This is how it played out behind the scenes on the Post Office side. At 10.42am on 15 March 2019, Grabiner was asked for his advice by the Post Office via his clerk. By 11.58am Grabiner had read Neuberger’s “observations”, and a 13 March document by David Cavender called “Note on background to possible recusal application”. He felt able to agree there were “reasonable grounds for an argument for recusal”.

    Grabs admitted he reached this position, in Jason Beer’s words “without reading any transcripts… without reading any orders, submissions, witness statements, statements of case”.

    Grabiner also told Beer he had no idea who originated the idea of recusal, whether it was “driven” by Womble Bond Dickinson, the Post Office executive or the Post Office board. All he could remember was being “told by Jane McLeod [Post Office General Counsel] that the decision from the learned judge came as a bolt out of the blue and was rather a shock to them, because according to her telling me, they hadn’t appreciated that he’d taken such a strong view against their position.”

    (Non-legal) Duty to Act

    By Monday 18 March Grabiner had read the Common Issues judgment. He held a conference at his chambers with Jane McLeod and WBD. Grabs is recorded as saying the Post Office had a “duty to act” and apply to recuse the judge. As the note of the meeting records:

    “Lord Grabiner explained that in his view, If there is no recusal application made, then Post Office will lose this series of trials that set up in this matter. Without a recusal application, Post Office is stuck with this judge. An appeal on the law may correct some of the very significant errors in the Common Issues trial judgment, but then the case will be sent back to this judge, who has demonstrable apparent bias against the Post Office and hence the firm conclusion that Post Office will lose and the financial impact of that will be substantial. Recusal is therefore essential… it was Lord Grabiner’s view that there was a duty on the Post Office to seek recusal. Lord Grabiner stated that in his view, the Board of the Post Office had no option but to seek recusal.”

    Beer wanted to know if Grabiner was telling the Post Office board it had a legal duty to act.
    “No,” replied Grabiner “I’m simply advising them as a lawyer as to what I think they ought to do, and that’s what I’m paid to advise them about.”

    Two Lords a-Bolloxing

    Lord Neuberger

    McLeod was stuck. She was getting strong advice from one of the biggest legal dogs in the country: applying for recusal was the Post Office’s duty. Yet McLeod wasn’t sure if her bosses, as she wrote, had “the stomach” to do it.

    Lord Neuberger was due to speak to the Post Office board by phone from Argentina that Monday afternoon. Grabiner had a medical appointment and couldn’t attend. McLeod arranged for Grabiner to speak to the board by phone on Wednesday 20 March. McLeod also told him the Post Office board wanted to speak to Neuberger that afternoon without Cavender or his junior Gideon Cohen present.

    Grabiner immediately emailed Neuberger to tell him about his interaction with McLeod and WBD. First he told him “I advised that the clients had no choice but to make the application.” Then he said “neither David nor Gideon will be asked to participate in your call – the board seems to think that they will get a more detached view from you in their absence. I make no comment on that bollox.”

    Neuberger replied:

    “Excluding them is a bit unfair to David and Gideon, but I suppose one can see where the PO are coming from… I am anxious to ensure that nothing I say crosses with what you have said/will say or makes your task more difficult. I have the luxury of expressing a view and then stepping back, whereas you will be presenting the case and are the ultimate adviser.”

    Beer wondered why Neuberger would be keen to ensure nothing “crosses with what you have said”, noting it correlated with a point in Neuberger’s witness statement where he wrote: “I was anxious not to give advice which was inconsistent with that of Lord Grabiner as he would be presenting the case and was the ultimate advisor.”

    Up until this point in his evidence, Lord Grabiner had been acting with courtesy and politeness. Something seemed to change. Grabiner replied:

    “Well what Lord Neuberger thought, I think you’d better ask him about. I can’t really climb into his mind beyond what he has said in communications that we have between ourselves that I’ve made full disclosure of.”

    As Grabiner and the Inquiry well knows, Lord Neuberger is not being called to give evidence, possibly to spare such a senior person from being embarrassed by his actions.

    Beer noted the minutes of the 18 March board meeting which Neuberger called into stated: “Lord Neuberger reported that he did not yet know Lord Grabener’s view of the case”

    Beer said to Grabiner:

    “This record of Lord Neuberger saying that he did not yet know your view of the case doesn’t seem very consistent with the email traffic that we had looked at earlier when you’d been exchanging views, do you agree?”
    “I don’t think I can comment really. I mean, this is for him, not me”, replied Grabiner, unhelpfully.
    “Would you agree that he had known your view of the case by this point?” Beer pushed. “You told him on the afternoon of the 18th what advice you’d given to the solicitors in consultation that afternoon, and your views as the prospects of success.”
    Grabiner was stuck. He groped for an answer: “Well, I’m not sure I can help further on the point. I mean, it may be that you’re right. I mean, the documents will speak for themselves” before suddenly alighting on “I don’t find this board minute particularly helpful or very clear at all, actually.”

    On 20 March, Grabiner reiterated his advice to the Post Office board that it had “no option” but to “seek the recusal”.

    The same day, Lord Neuberger wrote to Grabiner saying “I hope that they do not bottle it.”

    Beer asked: “Did you gain any sense that the board was keen to take this step, applying for recusal of the judge?”

    Grabiner stonewalled. “I’m afraid I didn’t get any sense at all. I mean, no doubt it would have helped if I’d been in the room, but I obviously wasn’t. But I had no sense of what they thought, or if there was any difference of view within the board on the subject.

    After the board meeting, Grabiner got the green light. He wrote to Neuberger: “We’ve been instructed to proceed. Idon’t think the clients had any choice but they were reluctant to take such a serious step.”

    In the Inquiry room, Beer asked again: “Can you recall on what basis you formed a view that the post office were reluctant to take this serious step?”
    Grabiner replied: “I was given the impression that unless they were comfortable with the legal advice, the independent legal advice that they should apply for recusal, that they wouldn’t be comfortable in taking that step.”
    Was this, Beer wondered: “essentially a lawyer-led decision?”
    Grabiner couldn’t care less. “I just don’t know because I don’t know what went on in the board. I mean, they were getting the advice and they took the advice and they did it. It was their decision ultimately. But I have no idea what the individual views were of people on the post office board.”

    Which judge?

    More Beer

    Then the gloves came off. Jason Beer took Grabiner to an email he wrote to Neuberger after the application had gone in later that week on Thursday 21 March. Grabiner wrote that Mr Justice Fraser:

    “has directed a hearing for next Wednesday week. Typically that was a date that he was told was not convenient for me. That case is now settled. So his rather pathetic attempt to dodge me has failed. That behaviour does rather confirm our suspicions about his Smith characteristics.” [this being a reference to the recusal of a peevish judge who had lost his luggage whilst presiding over a court case involving British Airways]

    “Was this becoming personalised?” asked Beer.
    “What do you mean by that?” retorted Grabiner, his voice suddenly filled with menace.
    “No more and no less than the question”, replied Beer.
    “What do you mean by personalised? As between who and whom?”
    “Well, you and the judge.”
    “Me and which judge?”
    “The judge that you were applying to recuse himself.”
    “Absolutely not”, replied Grabiner with some force. “My view was that he had made a mess of that case… I had certainly not developed any personal animus against him. It was exclusively concerned with the judgment and what had taken place in the trial.”

    Beer took him to an email Grabiner sent Lord Neuberger on the day the Post Office’s recusal application was refused:

    “As predicted”, wrote Grabiner, “Mr Justice Fraser rejected the application and refused permission to appeal. He also directed that the balance of the fact evidence in Horizon trial should immediately proceed. He has produced a 302 paragraph judgement, which at first glance confirms our concern that he is not fit to do the job.”

    “Are you sure you hadn’t personalised it a bit?” teased Beer.
    “No, that was my view and Lord Neuburger’s view” said Grabiner, growing visibly irritated “It’s not a personal matter. It’s a view about the calibre or quality of the judgment.”
    Beer disagreed: “It’s not the judgment, it’s the quality of the judge, isn’t it? It’s broadening it out from the quality of the judgment as a legal instrument to whether the man can actually do the job.”
    “I don’t accept that” replied Grabiner, contradicting what he wrote at the time. “My criticisms are about the quality of the judgment and the subject matter of the application for recusal.”

    Tinfoil Hats Ahoy

    Beer had more. After the Court of Appeal refused the Post Office permission to appeal the recusal application, Andy Parsons from Womble Bond Dickinson sent a note to Jane McLeod and Rodric Williams at the Post Office.

    “One curious point is that this Order was made by Coulson LJ, former head of the Trade and Construction Courts [TCC] and Fraser is of course the current head of the TCC. Given Fraser’s comments at the handing down of the recusal judgment that he had warned the C of A that an appeal would be coming, it makes us question whether he lined up / had spoken to Coulson in advance. I’ve asked LGQC [Grabs] to think about this.”

    From here, the conspiracy theory blossomed. David Cavender got wind and chipped in: “Yes, it looks very much like this is what Mr Justice Fraser set up in advance with his mate the former of the TCC unless you believe in coincidences. This is very bad news.”

    Grabiner signed up in a summary to WBD: “We share the concerns expressed in the flurry of emails. It looks as if Fraser J has been speaking either to the listing office or even to Coulson LJ. Otherwise it would be a remarkable coincidence that of all the LJ’s presented with the papers they ended up by chance in front of the former TCC Judge although this is not a TCC case.”

    It eventually fell to Lord Neuberger to be the grown-up in the room. In a draft response to Andy Parsons he wrote:

    “I think that there is a danger that our justified belief, and consequent sense of grievance, that the Judge has gone badly wrong may have made us over-suspicious of some sort of inappropriate collusion between the Judge and the CA. It would be perfectly proper, indeed sensible, for the Judge to have warned the CA of a possible forthcoming application which someone should look at urgently, although I cannot of course rule out the possibility that more was said (but even if it was, that is not by any means necessarily sinister). Coulson L is the U responsible for civil procedure, so it is not entirely surprising that the application ended up before him. The fact that he made an instant decision with regard to a stay is also unsurprising because that was urgent, and the fact that he has asked for the claimant’s response is a (pretty good indication that he is considering the application on its merits, as one would expect.”

    Perhaps with one eye on Andy Parsons’ appearance before the Inquiry on Thursday and Friday this week, Beer asked:

    “So is it right, Lord Grabiner, that the theory regarding some form of inappropriate relationship or communication between the High Court judge and the Lord Justice of Appeal originated from Mr Parson’s email that we looked at first?”

    Grabiner took the opportunity with both hands: “Absolutely!”
    “And in the end, Lord Neuberger essentially poured cold water on it?”
    “Very properly,” replied Grabiner, with a straight face. “I mean you can’t jump to conclusions about such a serious matter unless you know the facts, and we don’t know the facts, so it would be entirely inappropriate to reach the conclusion that there had been some… inappropriate collusion.”

    Exquisite gracelessnes

    Possibly being aware that he was being made to look faintly ridiculous, Grabiner could not hide his displeasure when the next topic came up – a suggestion he might have changed his position over the recusal application’s chance of success.

    It was introduced to the Inquiry in an email from Andy Parsons at WBD after the initial recusal application failed. Parsons told the Post Office via their General Counsel Jane McLeod that Lord Grabiner’s view remained that the Post Office’s prospects of getting the recusal if they applied to the Court of Appeal would “reasonable”.

    McLeod wrote back. “Hi Andy, sorry to be petty,” she wrote, “Lord Grabiner QC told me when I met him – it feels like ages ago – that we had strong grounds to bring the application for recusal. When I challenged him on what our prospects of success were, he said, and this is not an exact quote, he wouldn’t say strong grounds to bring the application unless there were strong prospects of success. That now seems to be downgraded If that’s deliberate then I need to be able to explain to the board why.”

    Parsons forwarded the email to Grabiner, who replied: “I haven’t downgraded anything.”

    Beer queried this, noting the initial advice from Neuberger contained the word “reasonable” and that on 18 March, Grabinder was recorded as saying there was “a serious prospect of success.”
    “Reasonable was not my word.” asserted Grabiner.
    “It was in a sense to start with, wasn’t it, right at the beginning of the episode?” asked Beer.
    “That was [Parsons’] summary, not my word.” said Grabiner.
    “No, I meant right at the beginning,” corrected Beer, “when you were… adopting what Lord Neuberger had said.”
    Grabiner was not happy. “I think you’re playing with words with respect… What I was, I think, being accused of, and this is something that you’d be familiar with over the years as a barrister, is being accused… by the solicitor that I had watered down my advice between point one in time and point two in time. That wasn’t true. My advice I think throughout has been consistent and I was making that clear in this email.”

    Finally, Beer took Grabiner to an email in which Lord Neuberger told him that the client’s failure to run the recusal application alongside their appeal of the Common Issues judgment at the Court of Appeal gave them “an “out” in terms of our advice appearing wrong“. It led to the following grumpy exchange:

    JB: Did you think that the client’s failure to follow your advice gave you an “out”?
    LG: No I didn’t. and this is not something that has even crossed my mind.
    JB: Did you discuss things at all with Lord Neuberger after the event? After perhaps recriminations started to begin as to whether or not you needed an out to explain away the advice that you’d previously given?
    LG: I’ve never ever considered that I needed an “out” in this case. No.
    JB: His suggestion that…
    LG: … no I didn’t…
    JB: … the client rejecting the advice on running the two appeals together did give you an “out”…?
    LG: …absolutely not
    JB: Lord Grabiner thank you very much. They’re the only questions I have.
    LG: I’m tempted to say thank you.

    And with that moment of exquisite gracelessness, Lord Grabiner finished his evidence and skulked off into comfortable retirement.

    Another barrister gave evidence yesterday. See De Garr Robinson’s Jenkins problem.
    If you want to know why the Post Office won’t tell me how much Neuberger and Grabiner’s advice cost them (us), click here.

    The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.

  • De Garr Robinson’s Jenkins problem

    Anthony de Garr Robinson KC

    Poor old Tony Robinson, just trying to make an honest crust defending his client, whilst being misled by his instructing solicitors (Womble Bond Dickinson), his client’s supplier (Fujitsu) or possibly even his client – the Post Office!

    As leading counsel for the Post Office in the Horizon Issues trial during Bates v Post Office, de Garr Robinson regularly seemed to be on the receiving end of duff information, which he took at face value and dutifully represented to to the High Court as fact. This, as he described in his witness statement, was sub-optimal. Recalling the first such occasion, he wrote:

    “I had unintentionally misled the court. As will be clear from the rest this statement, this was not the first occasion on which such a thing happened, and nor was it the last. It is a horrifying experience.”

    Avoiding the truth

    One useful bit of information de Garr Robinson was appraised of was the First Clarke Advice. This document made it clear that Fujitsu engineer Gareth Jenkins should never be used as a witness in any court proceedings given his apparent inability to tell the truth about problems with the Horizon IT system.

    As Jason Beer KC established, at a meeting of Post Office civil and criminal lawyers on 10 September 2018, two months before the first Bates v Post Office trial and well after the litigation was underway, de Garr Robinson was told that GarethJenkins:

    a) was an unreliable witness
    b) had been treated by the post office as a witness upon whom they could not place reliance
    c) was said to have given misleading/false evidence in criminal proceedings

    The problem is, Gareth Jenkins knew quite a lot about the Horizon system. He designed it. Yet a legal advice suggesting he might be partly responsible for miscarriages of justice, in the eyes of the Post Office, had to be kept secret, lest the truth come out. And this meant telling lies.

    A note of the 10 September 2018 meeting recorded that Fujitsu was told the reason Jenkins could not be used as a witness in the group litigation was because the Post Office “did not wish to mix civil and criminal evidence”.

    Beer suggested this was “a false explanation”.
    “I would say so”, agreed de Garr Robinson.

    In January 2019 Freeths, the Subpostmasters’ solicitors in Bates v Post Office, were keen to know why Jenkins was not being called as a witness. They were told by the Post Office that Jenkins “had acted as an expert witness in relation to a number of prosecutions that are being reviewed by the CCRC, and therefore, it was therefore not appropriate to call him.”

    “That would be a false explanation too, wouldn’t it?” asked Beer.
    “It would be economical with the truth, yes”, replied de Garr Robinson.
    “Therefore false,” Beer pushed.
    “I think so”, agreed de Garr Robinson.

    Subtle signals

    A sceptical Jason Beer KC

    It was easy for de Garr Robinson to agree the Post Office had lied to Fujitsu and Freeths, because he was not the one who had done the lying. However de Garr Robinson did co-write the Post Office’s closing submission to the High Court in the Horizon Issues trial.

    The closing submission states Fujitsu’s Torsten Godeseth was chosen over Gareth Jenkins to give evidence in the Horizon issues trial due to “the involvement that Mr Jenkins had had in a number of criminal prosecutions that are currently being looked at by the Criminal Cases Review Commission (eg the [Seema] Misra case)”. The Post Office was “concerned that the Horizon Issues trial could become an investigation of [Jenkins’] role in [the Misra case] and other criminal cases.”

    “Do you accept that the explanation provided to the court did not reflect the true reasons as to why Mr Jenkins was not being called as a witness?” asked Jason Beer.
    No“, responded de Garr Robinson firmly. “What’s being said is that… there were likely to be criticisms of what of things said or done by Mr Jenkins in the criminal, in the Misra trial and other criminal cases.”
    “Where does it say that?” asked Beer.

    De Garr Robinson explained that he was not able to tell the court about the Clarke Advice because it was privileged, so he was using a special code, which the judge would understand. De Garr Robinson was “signalling to the judge that there were things that Mr Jenkins had said and done that would be the subject of criticism. Anyone reading [that] in the context of these proceedings would have realised that was the case.”
    “That was being open and candid was it with the court as to the reasons why your client had decided not to call Gareth Jenkins?” asked Beer.
    De Garr Robinson launched into a long justification:

    “It was being made clear, in my view, to the judge that there were issues in relation to what Mr Jenkins had said or not said in criminal cases, which would have become the focus of attention. Now I ask this question rhetorically, why is it even relevant to say that? Why would that point even be made? It would only be made because there were previous inconsistent statements that would have been put to Mr. Jenkins had he been called. Indeed the judge in his judgment says that in one of the paragraphs. In my view that was a fair… that gave a fair indication to the judge of the concern that Post Office had which led to Mr Jenkins not being called as a witness. I don’t accept that was misleading at all… It doesn’t do so with the emphasis that you would probably suggest is required, but I do not accept that that was misleading. I believe that in the eyes of an experienced litigator that would have signalled quite clearly what the real… underlying concern was.”

    De Garr Robinson was unable to tell Beer the most senior person who had signed off his closing submission at Womble Bond Dickinson, though he did volunteer that “Andy Parsons would have approved”. He had no idea who would have seen it or signed it off at the Post Office.

    Beer remained unconvinced. “Given your long experience as a litigator, what do you consider would have been the reaction by the judge if the Post Office had disclosed the three reasons we discussed [see a), b) and c) above] why Mr Jenkins had not been called, albeit he was being used within the litigation as an important source of evidence given by others?”
    De Garr Robinson got testy. “You’re asking me to answer a question which is based on a hypothesis that I don’t agree with… You’re entitled to say, if you want…”
    “… thank you!” replied Beer.
    “you’re welcome… we could have been more emphatic. You’re entitled to say that.”
    “Thank you again”, said Beer.
    “But in my view, it would be quite wrong would be to say that is misleading,” finished de Garr Robinson.

    Colourful language

    Beer then took him to a note of a discussion de Garr Robinson had with Herbert Smith Freehills, a firm of solicitors brought in by the Post Office when it became apparent that Womble Bond Dickinson were tanking their case. The note was dated 4 October 2019, after the Horizon trial had finished, but before the judgment was handed down.

    In it, de Garr Robinson tells a lawyer from HSF “We didn’t call Gareth Jenkins, who is a god, but an unreliable god. They say that the fact we didn’t call Gareth Jenkins is suppression, and you know what? That might be right.”

    “Why did you think that what the Post Office had done may be the suppression of evidence from Gareth Jenkins?” asked Beer.
    “I think you’re reading too much into that”, replied de Garr Robinson. “I am given sometimes to explaining things in a very colourful way. There was no suppression of evidence.”
    “Suppression in this context, the suppression of evidence, means to silence, to cover up, to conceal”, stated Beer.
    De Garr Robinson again suggested Beer had the wrong end of the stick.
    “I’m just reading back the words that are recorded in this Herbert Smith Freehills attendance note on you”, replied Beer.
    It was, protested de Garr Robinson, just “colourful language in the course of an informal meeting… between litigators”.

    Or was it the truth?

    A heated discussion

    Sam Stein KC (l) with solicitor David Enright

    It’s all a paycheck to Mr de Garr Robinson, but to the people whose lives had been turned upside down by the Post Office’s abuse of the justice system, the suppression of what the Post Office knew about Gareth Jenkins was rather more serious. The first of the Subpostmasters’ barristers to ask questions was Sam Stein KC. Stein reframed the Jenkins issue by trying to ask de Garr Robinson about the implications of the decision not to come clean.

    SS: “You said in your evidence that as regards the explanation that was provided concerning Mr Jenkins that there was a concern that, or you’re flagging to the judge, there were likely to be criticisms of things said or done by Mr Jenkins in the Misra trial and other criminal cases?”
    AR: “Yes.”
    SS: “Are you trying to say that you were trying to tell the judge that in the future that there were going to be issues in criminal cases, possible appeals that related to Mr Jenkins? Is that what you’re trying to say?”
    AR: “I wasn’t talking about appeals.”
    SS: “Right. So what criminal cases were you talking about that you were trying to signal to the judge involved Mr Jenkins?”
    AR: “The Misra trial and other criminal cases in which he had been involved as an expert witness.”
    SS: “In what way was that going to be a future event that you were trying to signal to the judge?”
    AR: “I don’t understand your question.”
    SS: “Well, you’re trying to flag something to the judge. You’re trying to say to the judge… Look, there’s a situation here regarding Jenkins and his involvement in criminal cases. You’re trying to flag that up, yes?”
    AR: “Yes.”
    SS: “Now, flagging up seems to say you’re providing some sort of warning for the future.”
    AR: “Why do you say that?”
    SS: “You explain then what you mean by flagging it up to the judge”
    AR: “What I’m flagging to the judge, what we were flagging to the judge, was that… had Mr Jenkins been called as a witness, there would have been questions asked of him relating to the things he said and did not say in criminal prosecutions.”

    And this was Stein’s point. It would have revealed that Jenkins was possibly implicated in miscarriages of justice, something which directly affected many of the claimants in Bates v Post Office, and something the Post Office were maintaining had not happened. This was, in effect, essential information about potential miscarriages of justice, squarely relevant to many of the claimants, which the court was not told.


    Stein took de Garr Robinson back to his closing submission and the way he had characterised it to Jason Beer.
    “Did you explain this signal or this flag to the judge to your opponents?”
    “I have no recollection of discussing this with Mr Green at all”, replied de Garr Robinson [Patrick Green KC was the Subpostmasers’ leading counsel] “We were all experienced litigators… we all know what’s going on. It was adversarial litigation”
    Stein asked again. “Did Mr Green know that there had been concerns expressed by criminal lawyers that Mr Jenkins had misled a court?”
    “I have no idea… however, I would say… I have no doubt that Mr Green knew that there were criticisms being made of Mr Jenkins’ performance as an expert witness in criminal cases. Of course he knew that.”
    Stein pushed harder. “To your knowledge, did Mr Green know, or his team know, that there had been concerns expressed by criminal lawyers that Mr Jenkins had misled a court… actively misled courts?”
    “I’ve already answered that question”, tried de Garr Robinson.
    “You haven’t”, replied Stein. “You’ve diverted yourself from the answer.”

    Things got rather heated. The judge, Sir Wyn Williams, intervened to ask them to keep asking and answering questions “without either of you trying to chop down the other”.

    Stein asked once more if Green knew Jenkins had allegedly misled a court.
    “I imagine not” simmered de Garr Robinson.
    Having got this admission, Stein asked de Garr Robinson why this information wasn’t passed on.

    De Garr Robinson replied: “The source of my knowledge on that question was some legal advice that had been given five… six years previously to post office. That was privileged. It wasn’t in my gift to reveal it to the claimants… I didn’t have instructions to waive privilege.”

    It is a well known legal maxim that there is no privilege in iniquity. The iniquity exception prevents a party from asserting privilege in relation to documents brought into existence for the purpose of furthering a crime or fraud (recently clarified by the Court of Appeal to include “documents which report on or reveal the iniquity, whether they came into existence before or after the iniquity is complete”).

    Stein asked “Did you consider the criminal exception to privilege, sometimes called the iniquity exception to privilege? Did that cross your mind at all?”
    “No.” replied de Garr Robinson. “I just don’t remember thinking about these things in those ways. It’s not… it wasn’t in my gift to reveal to the court what Mr Clarke had said in that note.”

    And so the miscarriage of justice continued.

    Another, rather grander barrister also gave evidence yesterday. See Lord Grabiner: Never mind the “bollox”

    The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.

  • Post Office refuses to say how much Grabiner and Neuberger cost

    Neuberger (l) and Grabiner

    On 4 October 2023, I asked the Post Office to disclose the fee notes for Lords Grabiner and Neuberger under the Freedom of Information Act. I thought it would be interesting to know just how much public cash the Post Office used to spend on their advice, which informed the Post Office’s decision to demand Mr Justice Fraser recuse himself as managing judge of the Bates v Post Office litigation .

    On 20 Dec 2023, the Post Office refused to hand over the fee notes. On 28 Dec 2023 I asked the Post Office to review their decision (giving various reasons as outlined below).

    Today, a full five months later, and within minutes of Lord Grabiner finishing his evidence to the Post Office Horizon IT Inquiry, the Post Office informed me they were still not going to give me the information I asked for. “We apologise for the delay in responding”, they wrote. Yeah, right.

    Here is their letter.

    11 June 2024

    Dear Nick Wallis,

    Internal Review under the Freedom of Information Act IR2023/00719

    I am writing in response to your request for an Internal Review of Post Office Limited’s (“Post Office”) handling of your recent request for information under the Freedom of Information Act 2000 (“FOIA”). Please accept my apologies for the delay in providing a response.

    In your original request for recorded information under case reference FOI2023/00578 received by Post Office on 4 October 2023, you requested the following information:

    “Please could you provide, under FOIA, the fee notes from Lord Grabiner and Lord Neuberger’s chambers for the work undertaken in 2019 on the recusal application to remove Mr Justice Fraser as managing judge from the Bates v Post Office litigation. It would be useful to know how much they were paid and the nature of the work they charged for.”

    Post Office responded to you on 20 December 2023 stating that the requested information was being withheld under sections 40(2) and 43(2) of the FOIA, relating to personal data and commercial interests, respectively, and that disclosing the fee notes (constituting the named individuals’ personal and commercial data), would be likely to prejudice their and our commercial interests as well as infringe on their personal-data rights.

    On the 28 December 2023, you contacted Post Office to request an Internal Review of its decision to withhold the requested information under subsections 40(2) and 43(2) of the FOIA.

    A copy of the body of your email is provided below:

    “Thanks for the response. I would like to request a review of your refusal (dated 20 December) to provide the information requested in my original email, dated 4 October 2023 Lord Grabiner’s fees have been disclosed by public authorities on at least two occasions. At the request of an MP, this letter was written by the Bank of England:


    And at the request of a journalist, this information was made public by the Bank of England:


    From the information above, we can see Lord Grabiner was paid £1000 an hour (ex VAT) for work conducted in 2014. Given there is precedent in disclosing Lord Grabiner’s fees both to parliament and to a journalist under FOIA which does not seem to have harmed either Lord Grabiner or the Bank of England, your argument about section 43(2) of the Act rather falls away, unless you can demonstrate how disclosing Lord Grabiner’s and Lord Neubererger’s 2019 fees might prejudice Lord Grabiner’s, Lord Neuberger’s or your commercial interests.

    On the issue of Section 40(2) – data protection – I am not asking for personal data, I’m asking for the amount Lords Grabiner and Neuberger charged you and what they charged you for. This is not personal information. If the fee note contains personal information, please either feel free to redact it OR provide the information I have asked for, without giving me the actual fee note.

    I suspect you are trying to hide behind a spurious argument to protect the reputation of your organisation, rather than comply with the spirit of Freedom of Information law. Please acknowledge this email immediately and please provide a substantive response by midday on Friday 5 Jan.”

    In line with the requirements of the FOIA and the associated Code of Practice, we have carried out an internal review of your request for information and the way your request has been handled by the Information Rights Team in accordance with the FOIA.

    Having considered your original request afresh, while taking careful note of the comments in your request for an internal review, as well as consulting with colleagues in the business, the Post Office Review Panel considers that the Information Rights team has appropriately responded to your request in accordance with the FOIA.

    You contend that Post Office has misapplied the relevant provisions of the FOIA because: (a) if the fee notes issued to Post Office by the named individuals contain personal information, they should be redacted and then published; and (b) some other fee notes issued by one of the named individuals had been published by some other public authorities in the past without causing harm to anybody. The Post Office Review Panel has reviewed the handling of your request and considered each point you raised which I have set out below:

    a) Request to disclose the fee notes after redacting personal information

    We maintain that disclosing the fee notes will violate the absolute exemption under sections 40(2) and 40(3A) of the FOIA because they constitute personal data in their entirety. These sections exempt personal data from disclosure if that information relates to someone other than the applicant, and if disclosure of that information would breach any of the data protection principles in Article 5(1) of the UK General Data Protection Regulation (GDPR).

    We consider that disclosure of this information is likely to breach the first data-protection principle, which provides that personal data must be processed lawfully, fairly, and in a transparent manner. Disclosure would not constitute ‘fair’ processing of the personal data because the named individuals would not reasonably expect their personal data to be disclosed in relation to this request for information.

    Our decision is supported by section 3(2) of the Data Protection Act 2018, which defines personal data as “any information relating to an identified or identifiable living individual”. You have already identified and named the individuals, and the fee notes clearly relate to them because they had issued them in the first place in respect of their legal work for Post Office in 2019. As the whole fee notes constitute personal data, nothing will be left after redaction. And even if anything remains, it will serve no useful purpose because their itemised contents (the essence of your request) would have been redacted, including the amounts charged for the work done.

    b) One of the named individual’s fee notes had been disclosed by other public authorities without harm in the past

    As the fee notes are itemised, legal-work bills issued to Post Office by the named individuals, we maintain our decision that they constitute commercially sensitive data and are exempt under section 43(2) of the FOIA, relating to information which would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

    In applying this exemption, we have had to balance the public interest in withholding the information against the public interest in disclosure. We recognise that there is a public interest in disclosure of the fee notes as this helps to promote transparency in Post Office business and reassurance about the way public money is being spent.

    However, there is a strong public interest in withholding the information as it would likely, if disclosed, prejudice the commercial interests of Post Office, the named individuals or, both.

    Disclosure of this information may lead to future services being commercially exploited by third parties as the fee notes would weaken Post Office’s ability to negotiate better value for money contracts. It would, therefore, not be in the public interest to disclose information if Post Office would be unable to operate in a fair marketplace regarding the competitive dialogue procedure and are commercially damaged by the release of the information.

    I am sorry not to have been able to provide you with the information you seek on this occasion. If you remain unhappy with the handling of this request, you also have a right to appeal to the Information Commissioner who can be contacted at the address below:

    Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
    Telephone: 0303 123 1113

    Yours sincerely

    Information Rights Team

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  • More dispatches from the Post Office bunker: the PR guy goes Tonto

    On 1 Dec 2014 I was in Cornwall, where Tim Robinson, Jane Goddard, Joe Cooper and I had been filming with former Subpostmaster Sue Knight. After 32 years service Sue had been sacked and prosecuted by the Post Office for false accounting. Although the prosecution had been dropped, Sue’s life was falling apart. She had lost her job and reputation and was in the process of losing her home. Her mental health was in tatters.

    Our interview with Sue was due to go out in January as part of two films the Inside Out South team were making for the One Show. Whilst we were back at the hotel, recovering from a long day’s filming, Tim received a message from Huw Irranca-Davies, one of the MPs in James Arbuthnot’s parliamentary group. The MPs had decided to publicly withdraw their support from the Post Office’s Complaint and Mediation scheme.

    This happened on 9 Dec, when James Arbuthnot was interviewed on Radio 4’s Today Programme alongside his constituent and former Subpostmaster Jo Hamilton. The Post Office’s Director of Communications Mark Davies was also interviewed. Davies suggested the convicted campaigning Subpostmasters had “lifestyle problems as a result of their having been working in Post Office branches*”.

    That evening, Tim and I got the first One Show piece out, featuring Sue.

    Over the next eight days we worked on the second. For the duration of this period we were in regular contact with the Post Office, requesting an interview with Paula Vennells so she could put her company’s perspective forward.

    Our second One Show piece went out on 17 December, the same day as a parliamentary debate, in which the Post Office was described by MPs as “arrogant”, “high-handed” and “duplicitous” (more on that here on a website I really need to devote some time to. It’s quite old).

    The BBC are playing games

    Yesterday, during former Post Office Chair Alice Perkins’ second day of evidence to the Post Office Inquiry, we saw how this media activity was going down inside the Post Office bunker.

    On Sunday 14 December, three days before our second piece, Mark Davies emailed Alice Perkins, Paula Vennells (CEO) and Belinda Crowe (Project Sparrow Programme Director) to tell them:

    “The team and I have been working pretty much all weekend on the Parliamentary debate and (frankly) duelling with the BBC over their plans for a further round of broadcasts on Wednesday. A legal letter will go in the morning… Part of the challenge here is that the BBC are playing games: and it may well be that if we can’t provide a spokesperson they can’t broadcast it as it would lack balance.”

    Reader, we weren’t playing games, we were doing our jobs. We weren’t duelling the Post Office, we were making a film about Subpostmasters who blamed the Post Office for ruining their lives, and we were looking for answers.

    Jason Beer KC, who was questioning Perkins on behalf of the Inquiry asked:

    “Do you understand this to mean that refusing to provide a spokesperson would be a tactic used by the Post Office in the hope that the BBC would not broadcast because of a perceived lack of balance?”
    “That is what this is saying, yes”, replied Perkins.
    “Was what Mr Davies wrote here your view of what was happening: that the Post Office was duelling with the BBC?” Beer asked.
    “It would have been his view”, replied Perkins. “I wasn’t engaged in this.”
    Beer widened it out. “Was the Post Office viewing itself as being embroiled in a battle against the campaigning subpostmasters?”
    “I think it was, yes. I think it was”, replied Perkins.
    “Were staff fighting to protect the reputation of the Post Office?”
    “People were fighting to protect the reputation of the Post Office, as we now know, based on a completely wrong understanding of the facts.”
    “Is that how the scandal was then viewed internally by Post Office staff: a rather bloody PR battle in which they were entrenched against the campaigning subpostmasters?”
    “I wouldn’t use those words”, sniffed Perkins

    Davies’ Worthy Battle

    Beer took Perkins to an email from Belinda Crowe replying to Mark Davies, still on 14 Dec. Crowe told her fellow exec: “we are on really dodgy ground if we get into the detail of cases. However, as you know we have some good answers to some of the points raised and provided we can position this in a way that under no circs can it be construed as commenting on a case we should be in quite a strong position with our statement. I am trying to keep thinking of Kipling.”

    Beer wondered if she was calling to mind the famous Kipling poem If:

    If you can keep your head when all about you
    Are losing theirs and blaming it on you,
    If you can trust yourself when all men doubt you,
    But make allowance for their doubting too;
    If you can wait and not be tired by waiting,
    Or being lied about, don’t deal in lies,
    Or being hated, don’t give way to hating,
    And yet don’t look too good, nor talk too wise:

    “I imagine that that is”, said Perkins. “I’ve no idea.”

    Davies responded to Crowe’s reference with a quote from Theodore Roosevelt. “I’ll try to do this justice” said Beer as he read it out to the Inquiry:

    “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who actually does actually strive to do the deeds; who knows great enthusiasms, with great devotions; who spends himself in a worthy cause; who at best knows in the end of the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

    If ever you wanted a window on a completely batshit corporate mentality, as promulgated by Strong Man Mark Davies, face marred by sweat and blood, beating down those moany Subpostmasters with his bare hands and unlimited financial resources, this was it.

    “Does this give an insight into what Mr Davies saw as his role at the Post Office?” asked Beer.
    “He must have been feeling under a lot of pressure”, replied Perkins.
    “Was it your view that the Post Office team regarded themselves as marred by dust and sweat and blood in a worthy battle against their Subpostmasters?” he asked.
    “I wouldn’t have put it like that”, said Perkins.

    Whilst Perkins can afford to be glib, this matters. The culture and attitude Davies brought to bear on this scandal had a real world effect. Davies had already persuaded his CEO not to open an investigation into past prosecutions of Subpostmasters because it might cause bad PR, and by Dec 2014 Vennells had become a simpering cheerleader for Davies’ methods.

    We’ve already seen the sickening hero-gram Vennells sent to Davies (and Perkins) after our second One Show piece went out on 17 December. The film featured Jo Hamilton, the late Julian Wilson, Noel Thomas, Lee Castleton and a serving Subpostmaster from Nelson in South Wales, called Steve Phillips.

    In her email review, Vennells told her team the concerns raised by the campaigning former Subpostmasters left her “bored” and that Hamilton “lacked passion”. The next day Vennells sent another email turning her ire on Steve Phillips. Addressing the Post Office’s top legal person, Chris Aujard, Vennells wrote:

    “Chris, if you didn’t see the One Show, please can you watch the clip – again I expect we are best to do nothing at this stage but Steve Phillips is completely out of order, inaccurate at best, lying at worst. And has wilfully collaborated to [bring] us into disrepute. Any views?”

    She’s looking to fuck him up.

    This email was discussed at the Inquiry yesterday with Alice Perkins by Angela Patrick, Jo Hamilton’s barrister.

    Patrick asked Perkins: “is this just another example of the belligerent language we had seen being used in the business when talking about campaigning Subpostmasters? “Wilfully collaborated in bringing us into disrepute”, what do you think of that language?”
    “Well, looking at this now, obviously it looks absolutely dreadful”, said Perkins.

    But Vennells was proud of herself, and keen for Alice Perkins to see her thoughts, forwarding her both the “bored” email from 17 Dec and the 18 Dec one above containing her views on Steve Phillips.

    Angela Patrick sitting next to Jo Hamilton (r)

    “Did you take issue with what Ms Vennells was saying?” asked Patrick.
    “I may have done but I simply do not remember this”, replied Perkins.
    “We’ve seen the first [email] and I’ve read it out, she was congratulating Mark Davies for a job well done. This was a win she wanted you to see, wasn’t it?”
    “It would look like it, yes”, replied Perkins.

    There is no evidence of Perkins doing anything about her CEO’s language or attitude towards Phillips or the campaigning Subpostmasters. This allowed Davies and Vennells and Crowe and van den Bogerd and Aujard and Williams and Flemington and Singh to continue in their grotesque attempts to belittle and besmirch their innocent victims for another five years.

    * Read the full transcript of Mark Davies Radio 4 interview here. It remained the only interview with any serving Post Office executive about the scandal until my BBC Sounds interview with current CEO Nick Read nine years later. Listen to that here.
    Read the first Dispatches from the Post Office Bunker, here.
    Read more about an emboldened Mark Davies and his interactions with the BBC in 2015 here.
    For a full transcript and video of Day 2 of Alice Perkins’ evidence, click here.
    For live tweets from Alice Perkins’ evidence, with plenty of document screenshots (inc Davies’ Roosevelt email and Vennells 18 Dec email), click here.
    For a write-up of another extraordinary document (discussing Vennells’ sacking) to come out of yesterday’s evidence, click here.
    To support my presence at the Inquiry and the writing on this website, see below.

    The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.

  • The taxi for Paula Vennells which never quite came

    Marching orders? (Image © Eleanor Shaikh)

    A powerpoint slide deck was the most newsworthy element to leap out of former Post Office chair Alice Perkins’ second day of evidence at the Post Office Horizon IT Inquiry today.

    Thanks to an anonymous nine-page presentation, we know that in February 2014 the government was tempted to sack Post Office CEO Paula Vennells because people were saying she wasn’t very good at her job.

    To give some context, by 2014, Paula Vennells was coming up to two years in post. The Post Office’s complaint and mediation scheme for Subpostmasters was underway. Independent investigators Second Sight were digging into the Post Office’s dysfunction, a £640m government subsidy had been handed over and a massive change to Subpostmaster working practices and remuneration called Network Transformation was getting underway.

    The first slide of the powerpoint deck carries the logo of the Business Department (now DBT) and the Shareholder Executive (now UKGI) logos. It has the title Post Office Ltd Senior Management Risk and Assurance Committee and is marked “Restricted – People and Management” on the front slide, and then “Restricted – Policy and Commercial” on the rest. Make up yer mind, lads.

    Front page of the slide deck

    The summary on the second slide states: “There is a general consensus that Paula is no longer the right person to lead POL [Post Office Ltd], but justification is anecdotal.”

    Under the heading “Why is Paula’s position under review?” the summary continues:

    “The 2010 plan, which admittedly was not hers, failed to deliver the expected revenue growth, and the Network Transformation has required political awkward revisions to remain deliverable. Paula has not shown an understanding of political considerations (ie. presentation of plan to Ministers) or of the detail of the plan, and she has been unable to work with personalities that provide robust challenge to her.”

    On the option slide titled “Remove” the assessment reads:

    “There is a general feeling that Paula is not the optimal person to lead POL to deliver its commercial strategy. Paula has not been able to establish good working relationships with Jo Swinson [then Postal Affairs Minister]. She has been unable to retain key staff.”

    It goes on to say that under Vennells, the Post Office “refused to keep Govt properly appraised of developments in the NT [Network Transformation] programme, requiring difficult revisions in 2013. She has shown a worrying lack of knowledge about the detail of the new plan.”

    Furthermore: “Paula’s people management has caused concern as she appears unable to work with personalities and approaches that differ from hers, and has failed to build relationships with key Directors.”

    On the same slide, the anonymous author notes: “Paula’s performance as CEO has been questioned by the POL Chair, and by members of the Board”.

    Everybody Knew

    Alice Perkins: Day 2. Not remotely bored by the questioning

    Whilst giving evidence this morning, former Post Office chair Alice Perkins was at pains to point out that not only had she not seen this document, she found it “a surprise” that “these sorts of detailed conversations were going on and that nobody told me that they were going on at the time… I knew that the minister had some reservations but I had absolutely no idea that there was this machinery inside the Department that was having these conversations.”

    But Vennells’ uselessness was an open secret, even at the Post Office. Perkins told the Inquiry: “In 2014, I did start, and I wasn’t alone in this, to have reservations about Paula’s ability to lead the Post Office in the circumstances which it found itself in.”

    Jason Beer KC, who questioned Perkins today on behalf of the Inquiry, asked: “Is it right to those concerns included a doubt as to her personal grip specifically on Horizon issues?”
    “Yes”, replied Perkins “and it went beyond that.”
    Beer wanted to know how and where ShEx and the Business department had got the idea that Vennells wasn’t up to snuff.
    “I think they would have got it from a number of sources”, replied Perkins, fingering Richard Callard, the ShEx rep who sat on the Post Office board. According to Perkins he “would have seen Paula operating in the context of the board, would have heard conversations, would have been party to conversations that I and the other non-executive directors were having”.
    Then there would have been “feedback, I’m sure from the minister and the minister’s office” and there would have been “interactions with officials at different levels in the department”.
    Was Perkins herself party to all of this, wondered Beer? Oh yes, she confirmed: “I would have had conversations from time to time with various people in the Department… this would have been a topic of conversation on a pretty regular basis.”
    “To your knowledge”, asked Beer “which other members of the board had questioned her performance?”
    “I think everybody had by this stage”, replied Perkins.

    So Vennells was universally recognised as a bit of a duffer by everyone around her.

    Of course, their instincts were right. Paula Vennells went on to preside over the corporate cover-up of a catastrophic miscarriage of justice which:

    – ruined the Post Office’s reputation
    – destroyed the financial worth of the Post Office network (UKGI currently rate the value of the network at £0)
    – ruined the morale of serving Subpostmasters who saw their remuneration and value of their branches collapse
    – cost more than a billion pounds to put right

    But this only happened after the government gave Vennells a CBE, a seat on the Cabinet Office board and a plum job running an NHS Trust. Never in the history of corporate leadership has such mediocrity failed upwards so spectacularly.

    Why wasn’t Vennells shown the door in 2014, then? In the powerpoint slide giving the “Retain” rationale, we read Vennells “has performed adequately, meets most of the desired skills, is relatively inexpensive, and has a knowledge and understanding of the business.” It concluded:

    “The reasons for retaining Paula are largely negatively framed, posited in avoiding the risk of disruption… but this reflects the reality of the situation.”

    It seems that doing nothing and hoping for the best won the day. Download the full document here.

    A lengthy write-up of Day 1 of Alice Perkins evidence can be found here with a preview here. Read the live tweets from today here.

    The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.

  • Perkins in Wonderland: Day 1

    Alice Perkins takes the oath

    The Post Office scandal did not happen, or get covered up because of a single Machiavellian baddie. It happened because a bunch of serially incompetent people spent oodles of other people’s cash groping their way around a crisis without the competence or moral backbone to do the right thing.

    Alice Perkins, Chair of the Post Office between 2011 and 2015, has all the hallmarks of a capable, clever person. And it’s true that capable, clever people sometimes makes serious mistakes, or lots of regular stupid mistakes, whilst surrounded by people making similar stupid mistakes. Maybe.

    But, come on. The short story is that the appalling experiences of multiple Subpostmasters, whether channelled through the Justice for Subpostmasters Alliance, James Arbuthnot and his group of MPs, journalists, or the rigorous independence of Second Sight was staring Perkins and the Post Office in the face for years. Years. The only people telling the Post Office that the Post Office had done nothing wrong were Post Office staff and its compliant contractors (hello, Brian Altman KC).

    That should have told these witless corporate drones something. But it didn’t. And all of us remain completely mystified as to why.

    Watching Alice

    Over five painstaking hours, Jason Beer KC today showed Alice Perkins all the opportunities she had to challenge, change, intervene and make a difference to the course of the scandal. Time and again she failed.

    She hadn’t read Computer Weekly or Private Eye before taking the job. She listened to her external auditor, Angus Grant from Ernst and Young tell her right at the beginning of her tenure that the Horizon IT system was a “real risk”, as its accounts could not be verified. She did nothing.

    Sir Wyn Williams

    After taking the oath, Perkins’ evidence began with the Inquiry Chair, Sir Wyn Williams, reminding her of her “privilege against self-incrimination”. This suggests she is a person of interest to the Metropolitan Police, who are currently investigating a possible conspiracy to pervert the course of justice at the Post Office.

    Then came the obligatory apology, in which Perkins told Subpostmasters and their families that despite her “serious efforts” to get to the bottom of what was going on, “I did not succeed in doing so during my four years at the Post Office and therefore the suffering of those affected was prolonged.”

    Perkins witness statement was entered into evidence. It is a whopping 232 pages long and can be downloaded here. I suspect there are some gems within.

    Bright start

    The two gold stars we can put in Perkins’ achievement chart are her determination to instigate an independent review of the Horizon system (which led to the Second Sight Interim Report) and her equal determination to ensure that any review of campaigning Subpostmaster cases included those with criminal convictions.

    When asked why, in March 2012, she volunteered an investigation of the Horizon system during a meeting with James (now Lord) Arbuthnot, she told Jason Beer: “I had had the meeting with Mr Grant. I was aware that Private Eye had been covering this. It was clear to me that Lord Arbuthnot was very concerned about this issue. I took him seriously and I think at this point I’d come to the view… that we should take a fresh look at this to see for ourselves.”

    Two days after the meeting with Arbuthnot, Post Office board minutes record her telling her fellow directors that she and Company Secretary Alwen Lyons “met James Arbuthnot at his request to discuss the Subpostmaster cases questioning the integrity of the Horizon system. The chairman hoped that she could find a way to convince him and the other MPs that the system was not at fault.”

    Beer wondered why Perkins was proposing an investigation designed to convince MPs the system was not at fault.
    “It was not my intention”, she replied.
    “Why did you tell the board that it was?” asked Beer.
    “I don’t know”, said Perkins.

    We were taken to notes Perkins apparently made after a private dinner she had with her CEO Paula Vennells at The Zetter restaurant in Clerkenwell on 19 March 2012. Included in the notes were the statements:

    “We do not like prosecuting sub-postmasters. We are one of the very few public bodies who are allowed to bring our own prosecutions. Not something we take lightly. Our lawyers want a very high standard of proof (plus, no one would take lightly the decision to plead guilty to a criminal charge). We have taken a number of cases to the criminal court and we’ve never lost.” and “Horizon records transactions in great detail and with total transparency. All the keystrokes are recorded so we can reconstruct precisely what a Subpostmaster has done.”

    Jason Beer KC

    Perkins agreed these notes are not her “thinking that up from nowhere” and accepts that it was highly likely Vennells told her this. She also agreed she was being given the Post Office “party line”, which held for the duration of Vennells’ tenure as CEO. It’s also interesting to note that this appears to be the earliest evidence that Vennells had become aware of the Post Office’s status as a prosecutor.

    The Empire Pushes Back

    Having made the offer to James Arbuthnot to set up an independent investigation, Perkins was nonplussed to discover that no one at the Post Office thought it was a good idea or was inclined to do anything about it.

    “Did you feel that the business was pushing back unnecessarily?” asked Jason Beer.
    Perkins did.
    “Who in the business was pushing back unnecessarily?” he asked
    “I thought that Susan Crichton [General Counsel] was definitely pushing back unnecessarily. I thought Mike Young [Chief Technical Officer] was pushing back unnecessarily, and those were the two people who I had in the front of my mind”, replied Perkins. This was apparently partly because Horizon had already been proved to be robust and “given everything else that the business was trying to do at the time that there wasn’t the capacity to do this as well.”

    Perkins persevered and got her way. Second Sight were formally appointed in July 2012. Yet twelve months later, in the days leading up to the delivery of Second Sight’s interim report, Perkins seems to have gone native and was attempting to either shut down Second Sight’s report or stall it so the Post Office could get it changed:

    Beer asked her: “What was your understanding of the concern amongst senior Post Office executives about the Second Sight review?”
    “My understanding” replied Perkins, “was that the executives thought that there were likely to be things in the interim report statements made by Second Sight which were not properly substantiated by the evidence.”
    “What steps, if any, did you take to ensure that you were fully aware of what those issues were”, asked Beer.
    “I obviously at this stage didn’t know what was going to be in the Second Sight report”, said Perkins “but I would have been concerned that there might be things in that report which were critical without being properly substantiated.”
    Beer tried again: “Were you given any evidence of that as opposed to what people were saying?”
    “I simply can’t remember how much detail I was given about it at that point”, Perkins replied.

    When I use a word, it means just what I choose it to mean – neither more nor less

    Not crying, just blowing

    Nonetheless Perkins had somehow become convinced that Second Sight were wrong-uns, telling Paula Vennells in the run up to a meeting with MPs (where the Interim Report would be discussed) that “the risks of getting heavy with Second Sight [are] deeply unattractive. But I haven’t heard anything yet which gives me hope that we can get this properly back on track… Keep aiming high here. That is for the goal of no interim, no meeting.”

    Perkins told the Inquiry in her Witness Statement she did not know what she meant by writing “keep aiming high”. Beer pointed out that she explained herself in the following sentence. Kill the Interim Report. Kill the MP meeting.

    Oh no, waffled Perkins: “What I had in mind there was not what some people might read into this…. I think that what I was expressing there was the thought that the Interim Report was premature, that this was that more time needed to be spent on on the work leading up to a document that was going to be public. That’s what… that’s what I think.”

    Perkins was taken to another document she had written, this time on 31 July 2013 after a meeting in which she berated her General Counsel, Susan Crichton, for not keeping a tighter control of Second Sight. Perkins wrote:

    “I understood that Second Sight’s investigation had to be independent but in the civil service there would have been someone marking it who was close to all of the key people – Second Sight, James Arbuthnot, JFSA – and knew what was going on between them… Susan Crichton said that as a lawyer, it was inappropriate for her to influence key stakeholders.”

    Beer picked her up on this:

    “Would you agree that marking someone means to stay close to them, usually an opponent, in order to hamper his or her play?”
    “If you’re a footballer, that’s certainly what it means”, started Perkins, before conceding: “I realise that that verb and the one about influencing give a very particular impression of what I was trying to do.”

    Perkins told Beer that marking an investigation meant something completely different, which was: “liaison… keeping the channels of communication open with people who are doing an independent review, knowing how their time frame is working out, knowing how their costs are building up, knowing what they’re planning to do in terms of the way they go about their work and when it’s going to be presented and finding out whether there are things that they are encountering which are causing them difficulty or anything else that the organisation can reasonably be expected to want to understand.”
    It was, said Perkins: “absolutely not my intention that Susan or anybody else in the Post Office should be trying to influence the substance of Second Sight’s report.”

    My understanding is completely right from my point of view

    Beer clearly thought this was hogwash. “You meant mark in exactly that sense. Influence, hamper their conduct, stay close to them. You wanted the key people, Second Sight, James Arbuthnot and the JFSA influenced in their conduct, didn’t you?”
    “No”, replied Perkins.
    “If you didn’t mean that”, said Beer “or you were not understood… then can you explain why Susan Crichton replied in the second paragraph there that it was inappropriate for her to influence the key stakeholders.”
    And here Alice really did enter Wonderland, suggesting that “there was a complete failure of communication between what it was that I had in mind and what she… she interpreted that I had in mind. So I was… I’ve already said this, I’m on oath and I’m a truthful person. I am absolutely categorical that I, it was never my intention for anybody in the Post Office to try to influence Second Sight’s evidence-based findings, and I can see that if that is what Susan thought I meant, why she didn’t think that that was a proper thing for her to do. Because it wouldn’t have been a proper thing for her or anybody to do.”
    Beer spotted the obvious problem with this answer:
    “Why did you not say, “Hold on, Susan, I’m not even suggesting that at all. You’ve got the wrong end of the stick.”
    Perkins replied with one for the ages: “My understanding of it is completely right from my point of view.* What I am saying is that I completely failed to communicate what I was trying to say.”

    More Beer

    Beer reminded Perkins that Susan Crichton was under no doubt what Perkins means and gave evidence that Perkins was demanding that Crichton “should have exerted influence over the people responsible for the commissioning and conduct of the independent report and that’s why she said what she did about her professional duties.”
    Perkins replied: “She did say that, but that doesn’t mean that it’s right.”
    Once more, Beer asked: “So why wasn’t it corrected at the time?”
    “Well I obviously wish that I had paid more attention to making sure that the record of this meeting was a correct description of what I intended.” replied Perkins, apparently suggesting that she now wished she had actually written down a false recollection of the meeting which didn’t represent the facts of what happened, but an intended version of events.

    Perkins’ bullying of Crichton was also discussed in the context of her decision to keep Crichton on the naughty step during a crucial board meeting in on 16 July 2013. Whilst Perkins insisted it was out of sensitivity to Crichton, the decision had two clear outcomes. Firstly, by denying her the chance to argue her corner Perkins was able to scapegoat Crichton in her absence and avoid any pushback or blame over the way Second Sight were appointed and allowed to carry out their investigation. Secondly it prevented Crichton from telling the board about its liability for potential miscarriages of justice, which according to a board paper she had prepared, she may have intended to do.

    “Did you know from any other source that that was Susan Crichton’s view that there would be many successful claims against the Post Office arising from past prosecutions?” asked Beer.
    “No.” replied Perkins.
    “Do you agree that that is important information to have received from your general counsel?”
    “I do.”
    “Do you accept that this critical information may have been passed to you if she had been allowed into the room?”
    “I have no way of knowing that”, replied Perkins.

    Secrets and lies

    And to be fair, what Susan Crichton was going to tell the board remains a mystery, because at the very end of the day we were taken through a series of abject failures by three successive General Counsels to tell Alice Perkins and the Post Office board that they had a very serious legal problem on their hands, beginning with the first Clarke Advice of 15 July 2013.
    Beer asked Perkins what she thought was going on: “I honestly don’t know”, she replied. “I mean, perhaps people… weren’t paying attention.”
    “That would mean that a succession of General Counsels were each not paying attention on each occasion to a variety of papers.”
    “Seems a bit…” agreed Perkins in the crosstalk. Beer tried again, eliciting a new suggestion from Perkins:
    “Well, I don’t… I just, I mean, maybe it was too difficult… but I still don’t really understand that because if something’s very difficult, then you want to share it to make it hopefully less difficult.”

    Yes, the only thing that really makes sense was if there was a concerted effort to keep information from the (somnolent and incurious) Post Office board by a series of execs over a period of years.

    And that might be where the police go looking next.

    * My understanding is completely right from my point of view is going to be my second tattoo, after a piece of Vennells drivel from 2020: His questioning was challenging and because of that it was helpful; it did not lead to any different outcomes.

    Perkins continues to give evidence tomorrow – 6 June – starting at 9.45am – watch it live here (and see today’s evidence, if you want).
    Read my preview of Perkins’ stint in the witness chair here.
    Read the live tweets from today here.

    The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.

  • Perkins Preview: what secrets will Lady Humphrey reveal?

    Alice Perkins was Chairman of the Post Office for four years between 2011 and 2015. She got the job after a career spent in the civil service. One of the people who ostensibly worked for her during that period told me Perkins was “patronising… wooden and inarticulate”, complaining she “couldn’t connect with people at all… we used to see her about twice a year and she would give speeches that made you numb with boredom.”

    This is exactly what you might expect from a career civil servant. It might serve to lower your expectations for the next two days of evidence, were it not for several tantalising snippets of information which have come out of the Inquiry in recent weeks.

    Snippet One

    We know for a fact that Perkins was horrified at the way the Post Office General Counsel Susan Crichton had gone about letting independent investigators Second Sight conduct an actual independent investigation into the Horizon system. This was not the way to do things at all. Perkins met with Crichton in 2013, after Second Sight had delivered their report and gave her what for, recording in a note:

    “I understood that Second Sight’s investigation had to be independent but in the civil service there would have been someone marking it who was close to all the key people – Second Sight, James Arbuthnot, JFSA [Alan Bates’ Justice for Subpostmasters’ Alliance]) and knew what was going on between them.”

    Commission an independent report by all means, but don’t let the investigators be truly independent. Mark them.

    Snippet Two

    Perkins’ comic book baddie persona took root with another dig at Susan Crichton when she told her CEO Paula Vennells (again in 2013) that Crichton “sees so much as beyond her control. That’s the problem. It’s her alibi.”


    Snippet Three

    Perkins’ knowledge of the civil service dark arts manifests most ludicrously at the hands of her lachrymotic CEO. On 30 Jan 2015 Paula Vennells was preparing for her appearance before the Business Select Committee. In what has become an infamous email, Vennells wrote to her underlings with concerns about remote access to the Horizon IT system:

    “What is the true answer?” she asked. “I hope it is that we know this is not possible and that we are able to explain why that is. I need to say ‘no it is not possible’ and that we’re sure of this because of xxx and that we know this because we’ve had the system assured.”

    Telling her colleagues of the “need” to say “no it is not possible” has been interpreted as an instruction to find a way for Vennells to tell parliament remote access is “not possible”. But not according to Paula Vennells.

    On her first day of evidence to the Inquiry, Vennells (who had mystifyingly waited nine years to correct the record) told Jason Beer KC that the phrasing about her “need” was deliberate, because her boss, Alice Perkins had told her: “if you want to get the truth and a really clear answer from somebody, you should tell them what it is you want to say very clearly and then ask for the information that backs that up”.

    Really, Paula?

    A half-wit would clock this as nonsense. Vennells apparently didn’t. As members of the public gallery stifled sniggers, Jason Beer KC asked. “That’s an odd way of going about things, isn’t it? ‘I want to know the answer to the question. Here’s the answer to the question’.”

    People began laughing, but Vennells stuck to her guns. She maintained the Perkins doctrine – telling people the answer you want to hear and then instructing them to find the information which backs that up – was legit corporate management practice. Not at all the sort of thing a semi-deranged dictator, or manipulative civil servant would demand.

    More fool who?

    This is what makes Perkins’ evidence over the next two days so interesting. Is she a gormless apparatchik or a mafia don? Which version of Perkins will turn up to the inquiry? The wooden and inarticulate guffler, or the smirking Machiavellian schemer?

    Perkins’ likely claims of corporate propriety might be contradicted by contemporaneous evidence, but she is probably clever enough to have left very little trace. She certainly got out of the Post Office quickly enough.

    The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.

  • Grey Day gives little away

    Chris Day, former Post Office Chief Financial Office had all the hallmarks of a low-wattage witness. He met that expectation square on. I think I was the only journalist present today. More fool me.

    Taken at snail’s pace through multiple documents we’ve seen before, Day was unable to see the real risks in the Horizon system from the moment he joined in August 2011, to when he left in December 2014.

    One of the first things to hit his desk was the Ismay report. Day was Rod Ismay’s boss. We have met Mr Ismay before.

    Today Catriona Hodge, asking questions on behalf of the Inquiry, noted the Ismay report contained evidence about a number of software bugs, one of which had been affecting account balances in Post Office for years. Neither the Post Office nor Fujitsu (until that year) had properly diagnosed, let alone fixed it.

    Hodge said: “Bearing in mind that this fault appears to have persisted for a period of five years, undiagnosed and unresolved in the Horizon system, would you have not entertained the possibility that there would be affected branches where accounting errors hadn’t been detected and adequately resolved?”

    Catriona Hodge

    Day replied: “I viewed this series of bugs or glitches that had happened historically as being things which typically happen in a large IT computer system… that they had been addressed.”

    The incuriosity about Horizon errors and their capacity to impact the integrity of the financial system on which the Post Office was dependent seems to have been a feature of Mr Day’s tenure.

    He was taken to the conclusion of Mr Ismay’s report, which argues against an independent review of the Horizon system, stating: “it is important to be crystal clear about any review if one were commissioned. Any investigation would need to be disclosed in court. Although we would be doing the review to comfort others, any perception the poll doubts its own systems would mean that all criminal prosecutions would have to be stayed. It would also beg a question for the Court of Appeal over past prosecutions and imprisonments.”

    Mr Day conceded this was “odd”, but told the Inquiry: “I don’t recall having thought at the time that this was odd… my primary focus would have been to understand issues that might relate to the integrity of Post Office’s financial data. Regrettably, I don’t think I would have been focusing so much on what might need to be disclosed in court as a result of having an independent review commissioned.”

    Second Sight’s Interim Report

    Two years into Day’s tenure, Second Sight’s interim report was produced, naming two significant bugs which had caused problems with Horizon. Hodge wanted to focus on the minutes from the 16 July Post Office board meeting which discussed the report. She read out minute b) under the “Horizon” heading, which stated “the board were concerned that the review opened the business up to claims for wrongful prosecution”. Then Hodge referred to Day’s witness statement in which he wrote: “I do not recall who made that comment that led to the minute”, and “I don’t recall what the specific basis for this concern was.”

    Hodge explored this a little: “It might be suggested in your evidence that you’re seeking to distance yourself from the seriousness and significance of the concerns that are being voiced at this stage, as to the implications that Second Sight’s findings had for post offices past criminal convictions.”

    Day disagreed, telling Hodge: “My views were informed by periodic updates provided generally by the CEO, occasionally by the General Counsel. So I think the summary in the minutes under b) is exactly what my understanding would have been at the time.”

    Nonetheless, Day was told by the Board to (in Hodge’s words): “investigate the insurance position and to ensure that Royal Mail Group and Post Office Limited notified their insurers of the review’s findings.” Hodge added added “one of the aspects of the concerns of the board was not simply the businesses’ liability, but it was the individual liability of directors. Is that correct?”

    Day agreed it was. Hodge asked if it was of personal concern. Day replied: “I don’t recall having a concern and going back through all of the documentation it’s clear that there were lots of different conversations around insurance both at the board and outside of the board and different non-execs expressing concern about the lack of clarity.”

    Hodge pushed him: “What was your perception at the time as to where the focus lay as between the board’s interest in their own exposure and the exposure of the business?”

    Day replied: “My recollection is that the very first conversations were… around D&O [Directors and Officers – ie their own exposure], but I have to caveat that with, I didn’t have a full and detailed understanding of exactly which policies might apply in which circumstances.”

    A de-risked annual report

    It was hard going. At one point Hodge called Mr Day “Mr Grey”, an understandable error. After lunch the core representatives for Subpostmasters had a go. Ed Henry KC took Day to an Audit and Risk Committee (ARC) report from 20 Jan 2014 which noted “There is a risk that allegations relating to the integrity of the Horizon system, if not contained, could raise wider questions over the robustness of our core systems and our ability to operate, damaging, amongst other matters, current partnerships, new areas of expansion, and public and government confidence.”

    Henry then took Day to his final annual report, produced in June 2014. He wanted to know why there was no mention at all of the risk of allegations relating to the integrity of the Horizon system. Day replied: “at no stage did we seek to diminish or cover up the ongoing concerns that there were around Horizon if that’s what you’re alluding to… The auditors were kept abreast at all times of the findings of the Second Sight review. They reviewed the possibility at all times for contingent liabilities and/or provisions that would need to be made.”

    “Really?” asked Henry, wearily.

    “Yeah”, replied Day “My focus would be very much on… I need to disclose as much as possible to the auditors so that they can make a qualified judgment on whether they need to recommend creating a contingent liability or a provision.”

    Day could not explain why the Post Office board decided to remove all reference to Project Sparrow from the same annual report nor the decision to refer the issues raised by the Clarke Advice to the Post Office’s insurers, stating on the latter point: “Although it clearly was a material risk, I don’t think the fact of needing to report it to our broker had a bearing on what I would show in the annual report and accounts.”

    Where’s the blimmin’ money gone?

    Sam Stein KC wanted to know more about accounting for shortfalls within the Post Office. This, at least, is something you’d expect a CFO to be all over. Day was so detached it seemed as if at any moment he might float free.

    Stein started with the basics: “Do you agree that on occasions the Horizon system would suggest there’s a shortfall, in other words that the branch needed to pay a sum of money to correct, to balance the system?”

    “That could happen”, replied Day.

    “Mr Day, you must have been following this matter because it’s been part of the inquiry now for, and indeed history of this for, quite some time. Subpostmasters being confronted with a suggested shortfall in their accounts. You must be aware of that.”

    Day seemed reluctant to commit to this fundamental idea. “That’s a possibility. I understand that, yes.”

    Stein was incredulous. “What do you mean a possibility? Many, many Subpostmasters say it actually happened. It’s not just a possibility Mr Day.”

    Super (frustrated) Sam Stein KC

    Day conceded that Subpostmasters might have shortfalls in their accounts. Having got him to the starting line, Stein wanted to know where that shortfall, or debit went in the Post Office system.

    “Do you agree that to hold a debit against the Subpostmaster would require a credit? To be posted to the Post Office financial accounts?”

    “Not necessarily”, replied Day. “Because as I understood it, mismatches would be investigated. They wouldn’t automatically be put through as a debit to the postmaster and a credit to the Post Office. It wouldn’t work that way. The two sides of the transaction would be, attempt to be married up, where they didn’t marry up completely, they would be investigated. That would either result in a transaction correction or transaction adjustment, which the postmaster would have full visibility of it. In far more cases, as I understand it… there would be a credit balance in the suspense account which would result from the client company having demanded less of a transaction, having expected less from a transaction than the postmaster had input at their end ie the vast majority of credit balances would relay to discrepancies between Post Office at the centre and clients, rather than Subpostmasters.”

    As we pondered that answer Day volunteered he found it “regrettable” that the “onus was on the Postmaster to prove that through evidence [the shortfall] was not their fault.” He paused. “I think that’s very unfortunate.”

    “Unfortunate may be a slight understatement”, noted Stein.

    Day agreed. What Day didn’t do was successfully explain where Subpostmaster discrepancies went within the Post Office, nor how they were accounted for. It wasn’t for want of asking.

    Keeping us in suspense

    Stein went back to the example of a branch discrepancy or shortfall which would raise a demand for it to be made good. “Do you agree that that would mean that there was a debit against the Subpostmaster or mistress in branch and that that would require a credit to be posted within the post office financial accounts?”

    “I don’t think it’s as final as that”, replied Day. “I think it would have been in the suspense account of the Post Office pending resolution, pending investigation and again my view, my direct experience of suspense accounts would have been very much from the top down materiality. I accept that I wouldn’t have had visibility of sums which could be material to individual Subpostmasters.”

    Stein told Day to forget about suspense accounts for the moment. “We know that on occasion, Subpostmasters were confronted with shortfalls. Those shortfalls weren’t identified to any individual transactions such as stamps. They were just told there’s money owing to Horizon, okay? Let’s just stay with that for a moment. Money was then paid in by a branch manager or Subpostmistress or employee at the branch and that money went into the accounts. Do you follow with me so far?”

    Day did.
    “Right”, said Stein. “The bank underwriting Post Office was the Bank of Ireland?”
    “So the actual money paid in either through a cash injection into the system or digital transaction actually went to the Bank of Ireland. Do you agree?”
    Day was not sure.
    “Eventually it would go to the Bank of Ireland, surely?” tried Stein. “They’re the bank that underwrites it. I’d be surprised if they went anywhere else.”
    “No, that wasn’t my recollection”, said Day.
    Stein was getting frustrated “Where did it go”, he asked, “did it go into bonuses?”

    Day giving it back to Stein

    “You may be right”, replied Day, eventually going back to a version of his original explanation – that “there would have been a fundamental mismatch in some part of the transaction that would need to have been investigated” which means the money would go into “suspense accounts”, because “that’s the only place it would go pending final accounting determination or treatment. It doesn’t automatically go into either the Bank of Ireland or the Post Office’s pocket. That’s not the way it would work. It would be an unreconciled item that would be investigated.”

    After some more back-and-forth Day admitted: “I’m piecing together what what I now understand from other people’s evidence and from documentation at the time, because I had no reason to be that close to it.”

    The penny dropped. “So you don’t know the answer to the question?” said Stein. “You’re saying this is your best guess, is that right?”
    “Yes”, replied Day, simply.
    “All right”, said Stein, giving up. “I think I’ve taken that about as far as I can.”

    At the end of his evidence Day told the Inquiry: “It seems rather late now, but I would like to say that I’m extremely sorry for the devastating impact the Horizon scandal has had on so many postmasters and their families, and it’s extremely regrettable.”

    Well, quite.

    If you’re completely unhinged you might like to read my live tweets from today’s hearing, here.

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  • Alan Bates threatens legal action against the government

    Alan Bates in 2018

    Alan Bates has threatened “possible legal action” against the government for their perceived foot-dragging over financial redress for 555 Subpostmasters who joined him in the Bates v Post Office group litigation order (GLO) High Court case.

    Most of the 555 qualify for the government’s special GLO compensation scheme*, announced in 2022 and initially designed to complete in August 2024. When it became apparent that was a completely ludicrous deadline, it was extended by statutory instrument. Bates himself has received two offers of compensation, both of which he has refused, describing the process as an “ongoing uphill struggle“. It’s thought his first offer was for around 18% of his claim (“derisory”) and the second around 30%.

    In a Justice for Subpostmasters Alliance email circular, Bates has demanded the government appoint “a highly competent and independent person“, agreed by the Business department, the Justice for Subpostmasters Alliance and the individual lawyers for the 555.. Bates says they “should be given the authority to drive all the outstanding cases through to conclusion, and instruct all those involved to accept their decisions on all cases. They should be able to review any case at any stage and cut through the nightmare bureaucracy dragging this issue out year after year. And that needs to happen now.

    In his circular Bates complains: “we now find ourselves back in a similar position to that which we had with Post Office i.e. Government has hold of the control of the narrative, and this is the big problem we are having to deal with nowadays.

    Bates continues:

    “Some of you may have noticed that following the Minister’s March 2022 announcement that a Scheme was to be launched for us, this was when the early signs of Government’s controlling spin started to appear. They called it a ‘compensation scheme’ and ever since then we have been trying, with limited success, to have the Scheme rightly referred to as a financial redress scheme, which it actually is. Compensation is different to financial redress, as financial redress is meant to put you back to a position you would have been in had Post Office not done what it did to you, which was the agreed aim of the Scheme.”

    Bates also has a gripe about the Horizon Compensation Advisory Board, on which Lord Arbuthnot sits:

    “During the 2022 meetings about the proposed structure of the Scheme with BEIS, latterly DBT, and from here on referred to as the Department, we knew an independent Oversight committee needed to be formed to deal with any concerns that arose for the victims and to ensure the Scheme moved swiftly. With that committee having the authority to be able to move in and sort any logjams that might occur. In principle the formation of such a committee was agreed and when supporters of our long fought campaign were appointed to it, at first glance all seemed very promising.

    “However, the reality of what actually occurred was very different. The Department set the committee up, renamed it an Advisory Board and reduced its remit whilst broadening the Schemes it was to encompass. Furthermore, the Department acts as the secretariat to the Advisory Board and keeps the keys as to whom is allowed access to it. The JFSA has never once been allowed to engage with the Board at its meetings or was included in the discussions about its remit, and this too has been a further example of how it is now the Department is controlling the narrative.

    “As is recognised now, the first year of the Scheme was basically lost because Post Office either by design or with its usual systemic incompetence could not cope with being able to provide disclosure on the bulk of your cases despite holding the names of all the victims at the time of the Minister’s announcement in March 2022. Both we, the JFSA and Freeths [the solicitors who acted for the JFSA in Bates v Post Office and in helping them set up the GLO scheme], warned the Department at the earliest of meetings we had with it after March 2022, pointing out that Post Office disclosure was going to be the major stumbling block. Yet as usual, the Department would not listen to advice from those with years of experience of battling Post Office, it arrogantly took the opinion that it knew better and it would not happen under its watch – how wrong that proved to be, and we all have had to suffer because of that. And all this feels a bit déjà vu-ish of Post Office with their Schemes and the way they twisted and controlled them.”

    Bates tells the group that 150 people in the GLO scheme have gone for the £75,000 take-it-or-leave-it offer and a further 10 – 20 people have settled for larger sums. A similar number have not responded to Freeths or the JFSA, leaving around 320 outstanding, so called “complex” cases to resolve.

    Bates says he doesn’t know what progress is being made with the bulk of those cases because he “can’t believe the figures from the Department ‘controlling the narrative’, as there is no transparency to the figures they hold on their spreadsheets. Some figures are available from other sources, but there is nothing independently verified.”

    If things continue to stall, Bates says legal action is being considered and will be discussed at some, as-yet-unscheduled JFSA meetings this Autumn (which Bates firmly notes will not be held at Fenny Compton). Bates says the prospect of going back to court is “unfortunate“, but concludes “if that’s the only way, so be it, and have no doubt we have the support of the nation and the media if we have to go out and raise the funds needed to go to court again.

    He’s almost certainly right on that point!

    * 63 of the 555 had criminal convictions, which have now been overturned, qualifying them for the Overturned Conviction “scheme”

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  • Paula Vennells and Mark Davies: Led by the (brown) nose

    Mark Davies giving evidence on 14 May and Paula Vennells giving evidence on 24 May 2024

    In his witness statement to the public inquiry, former Post Office Director of Communications Mark Davies claimed Paula Vennells acted with “integrity and care” when dealing with the issues raised by campaigning Subpostmasters. In the same statement he states Vennells is a woman of “deep integrity” who is “guided by deeply held personal values.”

    On 17 Dec 2014 Vennells celebrated Davies’ professional skill and her own much-vaunted integrity and care. Vennells declared a recently-broadcast One Show film on the suffering of prosecuted, hounded and sacked Subpostmasters had left her “bored”. She dismissed the MP (Kevan Jones) who appeared in the segment as “full of bluster” (mocking him by asking “who?”), and stated that long-term campaigner Jo Hamilton “lacked passion”. 

    Mark Davies, in Vennells’ opinion, had done a brilliant job on the piece, achieving “a balance of reporting beyond anything I could have hoped for”, right down to the “statements stamped across the screen with the Post Office sign as a back drop”. Judge for yourself how boring or otherwise this is:

    Get a room

    On 28 December, after Vennells had been awarded a CBE in the New Year’s Honours List, Vennells wrote to Davies: “I wanted to thank you personally for your huge contribution towards this honour… I have lost count of the number of times I have relied on your judgement, listened to your wisdom and then taken your advice over the last few years. Your call was always the right one: guiding us through stormy waters of all kinds.”

    On 21 March 2019, after the Post Office board had agreed its batshit attempt to have the judge in Bates v Post Office recuse himself from the group litigation on grounds of his apparent bias, the pair exchanged sickly text messages.

    “I was so proud of the board yesterday”, spoffed Davies. “It’s hard work but I think we are doing a good job.”

    “Yes, I felt the same about the board”, Vennells simpered. “Very proud and pleased. Difficult but completely the right decision.”

    As Vennells acknowledged on Day 2 of her evidence, the pair stayed in touch after both had left the Post Office, with Davies in 2020 providing “media lines” for Vennells to take in preparation for the Inquiry. They were clearly close.

    Adverse media coverage vs helping falsely convicted people

    Vennells thought Davies was an underling she could trust and whose advice she could rely on. On 6 July 2013, Vennells was trying to work out how to respond to Second Sight’s Interim Report. Although the report wasn’t published until 8 July, Vennells and her team had early sight (forgive the pun) of it. Vennells sent an email to her executive team in which she knocked about a few ideas including the possibility of getting “external lawyers” to look at “our 500 prosecutions” and “review all cases of false accounting, eg., over the last 5-10 years” repeating further down the email “could we review all?”

    Mark Davies, who was cc’d in the email, responded the next morning. For some reason he chose to exclude the General Counsel and other execs on the cc list and send his reply to Vennells directly.

    “I am very concerned,” wrote Davies “that we may get to a position where we go so far in our commitments that we actually fuel the story and turn it into something bigger than it is. I am not at all complacent about the issues, but there is real danger in going too far in commitments about past cases.

    I say this for two reasons:

    – first the substance of the report doesn’t justify this response. Indeed the report is at such a level that our current media strategy would mean there would be some coverage, but not very much (the usual suspects). 

    If we say publicly that we will look at past cases (and whatever we say to JA or JFSA will be public) whether from recent history or going further back, we will open this up very significantly, into front page news. In media terms it becomes mainstream, very high profile. It would also give JA a very strong case for asking for a Parliamentary statement from BIS.

    – my second concern is the impact that this would have more broadly. It would have the “ballistic” impact which AB fears. It could lead to a very public narrative about the very nature of the business, raising questions about Horizon… and having an impact on public views about the Post Office and really widening the issue to the whole network.”

    This is about a clear a message as Vennells could get. Don’t look to see if past prosecutions are unsafe because it will generate negative media coverage.

    What did she do?

    A grossly improper perspective

    Jason Beer KC picked it up with Vennells at the Inquiry:

    JB: Do you agree his first point says you should make a decision about the extent to which you review possible past miscarriages of justice by reference to the extent of media coverage that it will generate?
    PV: It does say… it could be read that way. That wasn’t my…
    JB: Is there another way of reading it?
    PV: I wouldn’t have…
    JB: …and, if there is, please explain which words help to read it in a different way. He’s saying, “Don’t go back 10 years or say that you’ll go back 10 years, our current approach would mean there’s going to be some coverage but not very much, the usual suspects. If we ay we’ll look back at past cases, we’ll be on the front page”. Isn’t he directly saying…
    PV: Yes, I can see that that’s what he is saying.

    Beer wondered if this might be a “grossly improper perspective”. Vennells agreed.

    “To what extent did what Mr Davies advises here affect your decision making?” he asked.

    “I would never… have taken a decision based on the advice of one colleague”, replied Vennells. “Never. My way of working was to take as many different views as I possibly could and to involve those individuals in the decision making as much as I possibly could.”

    Bum steer

    Beer took Vennells to her reply to Davies. In it, she says: “Mark, thanks for this… You are right to call this out. And I will take your steer.”

    “You did take the advice of the PR guy, didn’t you?” asked Beer.

    “I really don’t remember it relating to the decision…” started Vennells, but her reply was halted by a loud, derisory reaction from the public gallery. Once the Inquiry chair, Sir Wyn Williams had intervened to restore order, Vennells told Beer: “I understand how this reads but I don’t recall making any conscious decision not to go back and put in place a review of all past criminal cases.”

    Beer noted that further down in Vennells reply to Davies, she told him “There are two objectives, the most urgent being to manage the media. The second is to make sure we do address the concerns of [James Arbuthnot] and Alan Bates.”

    Beer asked: “Do you accept that this exchange of emails shows that, in making decisions as the substance as to what the Post Office should do, ie whether it, itself, should seek to review whether there had been past miscarriages of justice, you took into account the views of your media adviser, as to the extent to which your decision would meet with front page news?”

    After blethering a bit, Vennells replied: “I absolutely don’t accept that I took a decision to not review past criminal cases based on a media outcome. I didn’t take any decision on that. I wouldn’t have been able to do so and it was… would have been such an important decision that would have had to have gone to the Board.”

    Earlier, Beer had asked “Do you agree that your nascent idea here of a review of all prosecutions of false accounting, if it had been carried into effect, may have avoided a lost decade until miscarriages of justice were discovered?”

    Vennells agreed. “It may well have done”, she said.

    O well…

    Other posts on Vennells’ evidence to the Post Office Horizon IT Inquiry:

    Vennells Day 1: Five things we learned
    Vennells Day 2: Cover-up finally acknowledged
    Vennells Day 2: Dispatches from the Bunker

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Latest Comments

  1. There’s no coverup. This (lik nick’s ‘shameful’ comment unusually) completely misunderstands. He’s given a witness statement. The Inquiry isn’t an…