Bates encouraged his members to stop co-operating with the inquiry, asking them to:
“withdraw your applications and show solidarity over the failure of the Inquiry to be concerned in the slightest of the victims’ greatest priority and most desperate need.”
This provoked the inquiry chair to ask Howe and Co (the JFSA’s lawyers) if they could:
“provide clarification and confirmation that the request [to withdraw] is genuine and endorsed by the members of the JFSA (by whatever means required by the constitution, formal or otherwise).”
Bates received this request and replied: “We are only exercising the same authority that was used to submit the application for Core Participant status and that authority was accepted by the Inquiry at that time.”
He added:
“Alan Bates & Kay Linnell, who are in agreement about withdrawing the JFSA from the Inquiry, are the authorised representatives of the JFSA which brought about the GLO legal action, and were contractually approved by each of the 555 members who signed up to the action to act on behalf of the group in all matters appertaining to the group action.”
Coincidence? Hmm….
Since that response was sent, two things have happened. The inquiry confirmed the JFSA is no longer a core participant. Then it told Howe and Co that:
“paragraph 183 of the Inquiry’s List of Issues is intended to consider whether all affected sub-postmasters, sub-postmistresses, managers, assistants, including the 555 Claimants in the group litigation of Alan Bates and Others v Post Office… were adequately compensated for the wrongs they had suffered.”
In a subsequent newsletter to his members Bates wonders whether it was “a coincidence that the statement appeared after the JFSA had withdrawn and was encouraging others to join with it… or it may just have been a failure to clarify that point when paragraph 183 was written.”
Either way he says: “now it’s there, in writing.”
Bates has decided he’s not going to formally take the JFSA back into the inquiry, but will co-operate with it going forward, telling his members: “the JFSA will be delighted to provide whatever [information] is required, and it does not need to be a Core Participant in order to contribute on the matter. Obviously now that the Inquiry has made the statement that paragraph 183 will include investigating whether the compensation paid to the 555 claimants in the group action was adequate, it is down to every individual as to whether or not there is value to them in engaging with the Inquiry.”
Seven more Subpostmaster convictions have been quashed at the Court of Appeal, bringing the total number to 72. This represents just under a tenth of the 738 people convicted using Horizon evidence between 2000 and 2015 when the Post Office stopped prosecuting people.
(l-r) Chris and Pauline Stonehouse, Gill and Greg Harding
Pauline Stonehouse, Greg Harding, Angela Sefton, Anne Nield, Janine Powell, Marisa Finn and Jamie Dixon were told Horizon evidence was essential in the cases against them, and there was inadequate investigation and/or disclosure in all cases.
In two cases – Greg Harding in 2010 and Jamie Dixon in 2013, the Post Office only accepted a guilty plea for false accounting if Harding and Dixon made no mention of problems with Horizon in any statement of mitigation. 2010 – 2013 is the period when the Post Office knew it had problems with Horizon and knew there was a campaign by the Justice For Subpostmasters Alliance and amongst parliamentary backbenchers. This is the cover-up writ large and it created significant human suffering. The Post Office told the court today it now accepts its actions were “improper”.
Lord Justice Holroyde made no distinction between category 1 and category 2 abuse in all of today’s unopposed cases, which suggests the convictions were quashed on the same basis as those in April and July – all were category 2 abuse – an affront to the public conscience.
Pauline Stonehouse and Greg Harding were the only appellants in court today, the others either did not attend or did so remotely via videolink. Outside court Greg told me he thought the Post Office’s actions in prosecuting him were “despicable”. Greg ran the Hipperholme Post Office near Halifax. He was prosecuted over an £18,000 cash discrepancy and a further £2000 in supposedly missing stamps.
Greg Harding
He said today was an “awesome, absolutely awesome – worth waiting for”.
I asked him to explain what it was like to live as a convicted criminal when he knew he was innocent. He replied:
“I’ve had this horrible, gutting feeling of being ripped off by the Post Office for ten years. I have my business stripped away from me. I’ve lost relationships. The Post Office took that away.”
Before being suspended over the £20K discrepancy at his office, Greg and his wife Gillian had had two large discrepancies which they settled by re-mortgaging their home. Unable to do so again, in order to keep trading, Greg started covering another growing discrepancy by agreeing figures on the Horizon system which were not correct.
When a Post Office auditor came to his branch and and found the cash discrepancy Greg was honest about what he had been doing. He was suspended on the spot and had to sell his branch to settle the “missing” amount.
A few months later, on Gill’s birthday, Greg was told he was being prosecuted for theft and false accounting, something he describes as “Life-shattering. Gut-wrenching. I didn’t feel that bright over what happened anyway, but they just started throwing the book at us.”
Surprise surprise, Greg was told that if he pleaded guilty to false accounting, the Post Office would drop the theft charge, but they would only accept his plea if he didn’t criticise Horizon in any documents put before the court.
After receiving a 20-week sentence suspended for two years, Greg went back to his old job as a welder-fabricator. He describes the Post Office’s behaviour as “accusational. Why on earth would you steal from your on business? I thought I was the only one.”
Pauline Stonehouse
Pauline Stonehouse ran the beachside Post Office of Seaburn in Sunderland. On 1 August 2008 she was sentenced to a six month community order after pleading guilty to false accounting. In the words of Simon Baker QC in court:
“Mrs Stonehouse had herself contacted Post Office to assist her with unexplained [Horizon] shortfalls. At her request, a field support advisor had attended the branch to try to help her understand the source of her discrepancies. She had also disclosed to her business relationship manager that she had been suffering losses which she could not afford to make good and had therefore been covering up. When the branch was audited, Horizon showed a shortfall of £15,699.16.”
Despite Pauline’s requests for assistance with problems she could not understand, the Post Office forced her to make good the discrepancy and then criminally prosecuted her. She was told it was because they wanted to set an example. She accepted this explanation at the time because she had no idea anyone else had been prosecuted.
“I’m disgusted.” she told me “They could have ended our marriage. The accusations they threw at Christopher. ‘Are you sure your husband’s not taken the money?’”
The Post Office’s actions in nearly or actually destroying families has yet to be properly documented, and it’s this which brings home the real-world, lasting damage of the scandal in addition to the mental health trauma, financial loss and ruined prospects. Last week Norman Barber, whose conviction was quashed at Southward Crown Court told me his father stopped speaking to him when he was convicted and he hasn’t been able to rebuild the bridges since. Today, Pauline told me she was forced to confront her husband:
“I went home after my interview. I’d been there for hours and hours. I’d mulled it over and mulled it over and I asked him ‘Did you steal the money…? Babe, did you?’ And he said, ‘Why would I?’ but the fact they put the thought in my head when I knew he wouldn’t have done that. It could have ended our marriage. But we’re strong. We’ve got a good thing. We love each other. And they could have ended all of that. Because of their vindictiveness.”
Chris and Pauline Stonehouse
Nonetheless the couple have suffered:
“They knew they had a problem with Horizon, but they weren’t going to admit it. It’s livelihoods, families, reputations. For me to end up in Newcastle Crown Court and be photographed and have my face in the Sunderland Echo and Northern Echo and being named and shamed and making me out to be a bad person and I’m not a bad person.”
Pauline found out about about the Bates v Post Office civil litigation and applied to join up in 2017, but eventually decided it was all too much. She saw the appeals going through earlier this year, and was contacted in May by the Post Office who told her she may well have grounds for appeal. They sent her a list of solicitors. Pauline chose to go with Hudgells who she says have made the whole process “really straightforward, really easy. They’ve been so amazing to work with.”
There were two opposed prosecutions heard in court today. The appellants are Roger Allen and Alan Robinson, who were prosecuted by the DWP. The CPS (acting for the DWP as the DWP no longer has this legal function) opposes their appeals on the grounds Horizon evidence was not essential to their prosecution. The Court of Appeal will hand down a written judgment on Messrs Allen and Robinson’s cases along with its reasons for allowing the unopposed appeals at a later date.
More appeals are in the pipeline.
If you want to read the blow-by-blow tweets from today, they’re here all on one beautifully-curated webpage.
I have written a book about the Post Office Horizon Scandal which you can buy for £25 as a hardback or £8.99 as an e-book from Bath Publishing and all good outlets. Please click here for more information.
Founder says “the powers that be have decided the real and desperate needs of the victims are of no importance.”
Alan Bates, the leader and founder of the Justice for Subpostmasters’ Alliance has decided not to co-operate with Sir Wyn Williams’ statutory inquiry into the Post Office Horizon IT disaster.
Yesterday, Sir Wyn published the List Of Issues the inquiry will pursue. Alan Bates says the list contains “just two paragraphs purporting to deal with financial redress. Neither of them have any relevance at all to the victims group – probably, because in their eyes, we have had full and final settlement and we can be ignored from now on.”
As a result he has withdrawn the JFSA’s Core Participant status, and is urging his followers to do the same.
Bates’ first move after the settlement was to issue the government with an invoice for the outstanding amount. It was refused. In December last year he issued a complaint to the Parliamentary Ombudsman demanding more than £300m from the government to properly cover the outstanding claims of the litigant group, and he made it plain all along he was not going to allow the JFSA to take part in Sir Wyn’s Inquiry unless the issue of redress was a priority.
Bates decided the list of issues did not say enough about redress and has concluded that for the 555 civil litigants “there now isn’t the slightest benefit to you or the victims group by staying engaged in the Inquiry as a Core Participant.”
Bates says:
“I now write to all of you who have registered as Core Participants to ask you to withdraw your applications and show solidarity over the failure of the Inquiry to be concerned in the slightest of the victims’ greatest priority and most desperate need. Many of the group have already told me they will be doing so, and it is important that we demonstrate through actions, that as a group, we are solid in our demands and stance; after all, we only want what we are rightfully owed.”
He adds, in a manner which will raise eyebrows:
“Do you really want to be named as a Core Participant in the Inquiry that abandoned the rest of the victim group?”
One civil litigant, who wishes to remain anonymous, told me tonight: “I don’t feel this is the right decision to make. This could potentially halt the hearing altogether, stopping all of the uncovered information coming to light. Everyone will of course make their own decision, I hope. But it’s definitely not mine.”
Bates’ desire to carry JFSA members with with him and potentially stigmatise those who don’t agree with him may unravel. Howe and Co, the legal firm who have been working with Alan Bates and who signed up a number of JFSA members as Core Participants to the inquiry, also sent out a circular to its clients today. It says:
“As you will see from the Chair’s statement and the final list of issues which was published this week, the Chair has listened to our submissions and your concerns and he has amended the list of issues to confirm, explicitly, that the Inquiry will look into the adequacy of ‘financial redress’. [their emphasis]”
They add:
“Alan Bates has informed us today that he has decided that the JFSA (as an organisation) will no longer be a core participant in Sir Wyn’s public inquiry. We respect Mr Bates and his decision. However, it is our view and the view of Sam Stein QC and Christopher Jacobs that it would not be in the interests of subpostmasters to withdraw from the Post Office Inquiry.”
Howe and Co tell their clients:
“We and senior counsel are sure the continuing involvement of subpostmasters in this Inquiry will not only hold Post Office and government to account, but will also lead to early and tangible action to address the outstanding issues of legal and legal funding costs for the group litigation and urgent compensation for subpostmasters and their families.
“It is our view that withdrawal from the Inquiry risks undermining subpostmasters’ ability to achieve fair reparations, and may leave them with no voice in this important public inquiry.
“We also consider that withdrawal from the Inquiry of individual core participants would deprive those individuals of having access to important documents which are relevant to their cases and it would substantially reduce the pressure of Post Office Limited and BEIS to make good on their appalling treatment of subpostmasters. In short, the only parties who would benefit from Core Participants withdrawing from the Inquiry would be Post Office Limited, BEIS and Fujitsu.
“As you will see from the developments over the past two weeks, we have already made substantial progress. We are sure that further substantial progress will be made in the coming weeks, and that such progress can only be helped by your ongoing and full participation in this historic inquiry.”
But Lee Castleton, who attended the first open hearing of the inquiry on 8 November told me:
“I will never take part in an inquiry that will not do anything for my family. Honestly, I don’t care why it happened until I can be free of the problems that still haunt me to this day. Sir Wynn can talk about the ins and outs of the process which was twisted and turned in order to damage good people in terrible ways…I look at 75 year old Noel [Thomas, whose conviction was quashed on 23 April this year] and think why is it we need to know what happened… before helping a dear and good family man to live out his final years in comfort and joy?”
This all leaves JFSA members in something of a pickle. There is no doubt Alan Bates is a hero. His achievements at the High Court in putting together the legal team, the case and succeeding is one of the most extraordinary stories ever told, and he achieved it against all the odds. Without him, it is entirely possible no one’s convictions would have been quashed and the world would not know about this story. People, understandably, trust his judgment.
But as another anonymous civil litigant said to me of the JFSA circular tonight: “the tone of the message concerns me more than the content.”
(l-r) Neil Hudgell (solicitor), Anthony Gant, Megan Gant, Kirsty Gant, Balbir Grewal, Norman Barber, Mandy Barber
These were the first convictions quashed since July and the third round at Southwark Crown Court. As of today, the Southwark Crown Court has overtuend sixteen convictions (six on 11 Dec 2020 and two on 14 May 2021) and the Court of Appeal has quashed the remaining 51 (39 in a judgment handed down on 23 April 2021 and 12 at a hearing on 19 July).
Today marked the first conviction quashed after a prosecution by the Crown Prosecution Service rather than the Post Office. David Hughes (who did not take part in the group photograph above) was employed at Cockermouth Post Office. In December 2006 he found a discrepancy of £6,500 between the amount of cash in the safe and the amount Horizon recorded should be in the safe.
In the words of the CPS barrister, David “panicked and was scared” and so every day for the next three months he entered false figures into Horizon to cover up the loss.
The police were presumably called and the Crown Prosecution service noted that Mr Hughes had made a full and frank admission to false accounting. But what of the discrepancy itself? Although this didn’t come out in court today, one of the CPS pre-charge reviews into Mr Hughes’ case states:
“The Post Office aren’t able to say whether or not the money has gone or whether it is an accounting error or a number of smaller errors. Clearly the Post Office aren’t prepared to go down the route of forensic accountant investigations and I don’t propose that we should either.”
Eventually the CPS chose to prosecute Mr Hughes for forgery* and he pleaded guilty. He was given a community order.
Today the CPS said Mr Hughes had been trying to cover up Horizon problems. The CPS was now aware (“as is everyone else”) that Horizon was not remotely reliable. There was therefore no crime.
All six convictions were quashed peremptorily by the judge who told the appellants they “walk away from court with no stain on their characters.”
Outside there was a group photo for those who wanted to take part, then quick interviews. It was heartbreaking to hear the effects the convictions had had on people’s lives and families, and I will try to address them in a longer blog post tomorrow.
For the record, here is the full list of those whose convictions were overturned today:
• Mohammed Aslam pleaded guilty to false accounting at Newport Magistrates’ Court on 23rd January 2007 and was sentenced to 60 hours of unpaid work and a £300 fine.
• Amanda Barber pleaded guilty to fraud by false representation at Warrington Magistrates’ Court on 6th June 2012 and was sentenced to 100 hours of unpaid work.
• Norman Barber also pleaded guilty to fraud by false representation at Warrington Magistrates’ Court on 6th June 2012 and was sentenced to 100 hours of unpaid work.
• Anthony Gant pleaded guilty to false accounting at Shrewsbury and North Shropshire Magistrates’ Court on 29th October 2007 and was sentenced to 6 months’ imprisonment suspended for 12 months and 100 hours of unpaid work.
• Balbir Grewal pleaded guilty to false accounting at Luton Magistrates’ Court on 13th August 2001 and was sentenced to a suspended sentence and a community order.
• David Hughes pleaded guilty to making a false instrument at Workington Magistrates’ Court and was sentence to a community order of 12 months and 100 hours of unpaid work.
All were referred to the Crown Court by the Criminal Cases Review Commission. All were represented by Hudgell Solicitors except David Hughes who was represented by WellsBurcombe.
* according to the CPS: “A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine.” An instrument can be a document.
Please forgive the indulgence of marking the launch day of my book with a blog post.
It has been a very strange year. I am used to collaborating with people on broadcast projects, or firing off short blog posts.
Putting together a 500 page monster over five and a half months has been another matter entirely.
That’s not to say there wasn’t any collaboration. Of course there was and I’d be floundering without it. The publishing/editing/admin team at Bath (David, Helen and Hannah) have been amazing, as has Clare Hoban from Reviewed and Cleared who lawyered the book. Cover designer Justin Folker from Nine Point design is also on top of his onions. It is a very striking cover which will hopefully stand out on the booksellers’ bookshelves. I’m delighted with the finished product (particularly the verdict from one close reader today who claimed he had not yet found a single typo. Typo extermination is essential, but rarely 100% successful. If we really have excised them all I will henceforth sleep a lot easier).
I am also extremely grateful to those who entrusted me to tell me their stories and those who gave me the documentary evidence I needed to write the book. Without them, there would be no book, so thank you. You know who you are.
Other than those who were kind enough to read a galley proof and give me cover quotes (see below), there have, to date, been two post-publication reviews, one from the esteemed Joshua Rozenberg and the other from the equally esteemed (but not as well known) JM Collins on Amazon. Please give them a click.
If you have read the book and want to say something about it – please do so on Amazon, whether you bought the book from them or not. Lots of reviews are apparently like catnip to the Amazon algorithms – good things happen when they get excited. If you want to buy the book, or more copies of the book, well step this way sir/madam. The Great Post Office Scandal is available everywhere, but Bath Publishing would, on balance, favour any decision made to buy it direct from them.
(As you may know, 10% of the income Bath Publishing get from the book will be deposited straight into a fund to help Subpostmasters and Post Office workers who have fallen foul of the Post Office’s punitive methods. I am hoping to be able to tell you more about that next week.)
Finally, I am extremely grateful to anyone and everyone who has put their hand in their pocket thus far. Your confidence in me, and your interest in the story really means a lot. I hope reading it repays you many times over.
Best, Nick.
Cover quotes:
Ian Hislop: “An extraordinary journalistic exposé of a huge miscarriage of justice.”
Mishal Husain: “The definitive account of the scandal.”
Rev Richard Coles: “A tale brilliantly told. I urge you to read it.”
Dame Joan Bakewell: “Nick’s narrative has the power of a great thriller.”
If you don’t ask, you don’t get. After hearing several arguments from knowledgeable and expert legal types at his statutory inquiry’s first open hearing last week, the chair of the inquiry, Sir Wyn Williams, took the initiative. He wrote to the Post Office, the government (specifically the Business department and UKGI, its corporate arm) and Fujitsu, asking them to waive privilege on important legal documents.
Privilege relates to communication between lawyers and their clients (in this case, the Post Office, BEIS, UKGI and Fujitsu). The courts cannot demand to see this communication. Neither can statutory inquiries, but Sir Williams obviously heard enough from the various contributors on 8 November to act.
Within hours of the hearing’s conclusion he had issued his challenge, demanding a response by 4pm yesterday.
We have learned, as of this evening, in many substantive areas, the Post Office, the government and Fujitsu have rolled over.
Sir Wyn issued the following statement in response:
“The responses of BEIS, UKGI and FUJITSU speak for themselves. The response of POL, on any view, goes a very long way towards meeting the request I made of them. It is clear to me that in respect of many of the most crucial lines of investigation for the Inquiry POL has waived legal professional privilege.”
The prospect of another hearing before Christmas to decide on the issue of privilege has been dropped. Of course, actions speak louder than words, and Sir Wyn has warned:
“if, in the future, it becomes necessary to re-visit the issue of legal professional privilege on account of emerging evidence or for any other proper reason I will do so at an appropriate time and, if necessary, invite further submissions both in writing and orally.”
If the Post Office, government and Fujitsu really are going to turn over every substantive document to the inquiry, it will make for an interesting read.
For a start, we’ll get to see the Altman Review, written in October 2013 by Brian Altman QC – the same Brian Altman QC who acted for the Post Office in the Court of Appeal between November 2020 and April 2021.
Although we don’t yet know what the Altman Review says, it was such an important document that shortly after receiving it, the Post Office stopped prosecuting people, but also continued to deny any miscarriages of justice had taken place. It’ll be interesting to see the legal gymnastics going on there.
We also might find out why Susan Crichton, the Post Office’s General Counsel mysteriously disappeared shortly after finding out her Head of Security, John Scott, had ordered the shredding of documents relating to problems with Horizon.
And we might also find out what advice Chris Aujard, Susan Crichton’s replacement, was advising the board about the Second Sight investigation into the Horizon IT system and how to deal with it.
A lot of people are telling me I’m going to have to write a sequel to my book. I’m looking forward to it.
Oh, no, minister… there’s nothing to worry about here…
An enthusiastic follower of the Post Office Horizon Scandal has unearthed a document via the Business department which I am sure will be of interest to Sir Wyn Williams’ statutory inquiry.
John O’Sullivan asked BEIS to send him (via the excellent whatdotheyknow.com website) any briefing documents given to Jo Swinson about Horizon when she took up her role as Postal Services minister in 2012. BEIS has obliged, finding a briefing note on the subject handed to Ms Swinson between August and November 2012.
The document is neither dated, nor authored. It states:
“there has been a small trickle of cases referred to Ministers from or on behalf of former spms [Subpostmasters] who have had their contracts terminated by POL [the Post Office] for financial ‘discrepancies or shortages’ (falling within the range of theft, false accounting or negligence) who have claimed that there are systemic faults with Horizon which have caused the losses rather than theft or other financial malpractice by themselves or members of their staff/family.”
This makes it clear that this “small trickle” of people are claiming miscarriages of justice. One of the most serious harms the state can inflict on an individual.
Turning to Horizon, the document states:
“Over its extensive period of operation the system has proved robust.”
But it does not cite how or why the author has come to this conclusion.
Seven years later, after a proper examination, Horizon was found to be “not remotely robust” by Mr Justice Fraser, a direct contradiction of Sir Humphrey’s damaging assertion.
The document goes on to state that the Post Office “believes that if there were any systematic integrity issues within the system they would have been evident over the past 10 years.”
This is a misleading belief, and a dangerous one to repeat. It does not take a genius to realise that for something to go catastrophically wrong for an individual Subpostmaster, there didn’t need to be systematic integrity issues, just occasional ones.
Reassuringly, the document states: “Both the NFSP and CWU have expressed full confidence in the system”, again without citation. This is perhaps the most damaging sentence in the breifing note, because if there were anything wrong with Horizon, you would have thought the two unions whose members used it would be hopping up and down, yet strangely, they weren’t.
The author of the document goes on to note that during a meeting on 18 June 2012 between MPs and the Post Office, it was decided a forensic accounting firm would be appointed to investigate “a small number of individual cases”. The firm was Second Sight and the conerns became the “Spot Reviews”, four of which were attached to Second Sight’s famous Interim Report, published the following year.
The briefing document to Swinson is interesting because it presents the minister with an important position for the state to adopt. Either what the report calls a “miniscule” number of people are falsely claiming to be innocent of criminal offences, or there is the potential for several serious miscarriages of justice to have taken place.
What Jo Swinson did about this isn’t clear, as she has refused to acknowledge any requests for an interview about her three years as Postal Services minister ever since.
Younger readers may be wondering what on earth the reference to Sir Humphrey is all about. If that’s you, read on, or watch here…
Inquiry chair writes to the Post Office, Fujitsu and government immediately after hearing
Grabbing the Tate Modern Shop tiger by the tail
Today’s hearing at Juxon House (in the shadow of St Paul’s Cathedral just over the Millennium Bridge from the Tate Modern, hence the picture above) was described by Sir Wyn Williams as the first “truly open session” of the Post Office Horizon IT inquiry.
It certainly had some effect. Immediately after the session was concluded, Sir Wyn wrote to the Post Office, government and Fujitsu demanding they provide him with full access to hitherto secret documents in their possession.
Sir Wyn wants “a waiver of privilege in respect [of] legally privileged material” held by the three groups “dated from the date of the first pilot of the Horizon IT System to the Prime Minister’s announcement to hold an inquiry on 26 February 2020.”
Why was he so exercised? Well – either he had made up his mind before the hearing had begun (which I am sure, being a good judge, he would never do). Or he heard enough alarming evidence and solid arguments for the need to waive privilege over the course of the day, he felt moved to act immediately.
(l-r) Juxon House, St Paul’s Cathedral
The hearing was attended by representatives of HMG, the Post Office, Fujitsu, the Met Police, Paula Vennells, the NFSP, CWU as well as legal representatives of very many Subpostmasters. If you would like to read the live tweets from today – which contain lots of direct quotes and links whilst also hopefully giving a flavour of what it was like to be in the room – please click here. It was possible to watch the inquiry on a live youtube link on the inquiry’s channel. This no longer works, which is disappointing. I hope this is a temporary situation.
The day kicked off with a recognition from Sir Wyn that the issue of legal professional privilege was extremely important and needed to be addressed.
Show them the money
Statements were made by representatives of the Subpostmasters who are central to this inquiry, the lengthiest by Sam Stein QC, who was speaking on behalf of the 151 Subpostmasters who have signed up with Howe and Co solicitors.
Mr Stein touched on many areas, but his main theme was redress, redress, redress. He argued the government and the Post Office should be compelled in the strongest possible terms to provide the Subpostmasters who have suffered so much and for so long, with proper, immediate and effective compensation. Howe and Co recently wrote to Nick Read demanding compensation (the letter can be read here). Mr Stein revealed they had had a response. The Post Office said it has “been in contact with the Government in this regard and will continue these discussions on the group litigation settlement figures.”
A shorter submission was made by Tim Moloney QC on behalf of those Subpostmasters represented by Hudgells, which again was about the need to focus minds on waiving privilege. As he pointed out:
“The Convictions of the Core Participants that we represent were quashed in April which is some seven months ago, and yet no decision has been made in relation to privilege – and we’d ask Post Office to heed your encouragement in respect of that decision-making.”
Then we heard from the National Federation of Subpostmasters. Their CEO Calum Greenhow gave a very good speech, but somehow forgot to mention the NFSP’s culpability in this scandal. Nor did he invite the inquiry to examine it.
Ian Henderson from Second Sight asked the inquiry chair to ask the Post Office if his organisation can be released from the NDA and other contractual obligations to the Post Office so they can better serve the inquiry.
Getting ethical
The final two speakers were Professor Richard Moorhead from Exeter University and the barrister Paul Marshall. Both made intriguing submissions which drew attention to some of the darker corners of this scandal, and in doing so, made the case for putting pressure on the Post Office and government to surrender documents they have so far failed to make public.
Professor Richard Moorhead is a leading legal ethicist. He brought a moral dimension to the inquiry, stating clearly that morality is one of the bases on which the Post Office and government should waive privilege, adding “I don’t see how they can come to the inquiry and claim to be co-operating without doing so.”
“Through our own work, and that of Second Sight, we have found nothing to suggest that, in criminal cases, any conviction is unsafe.”
Prof Moorhead called this statement:
“palpably false, whether Mrs Vennells knew it or not. It is a statement made by the senior manager of POL, and very likely indeed, with the assistance of lawyers directly reviewing or drafting the letter, or indirectly, through previous advice which is being used here. Lawyers and managers were involved and responsible. Lawyers and managers are mutually responsible for this irresponsibility.”
Prof Moorhead addressed Sir Wyn:
“You must investigate them both if the lessons are to be learned and similar problems are not to occur again. They cannot hide behind privilege whilst shifting blame.”
He finished with an analogy which I would put good money on turning up in the Daily Mail tomorrow, telling Sir Wyn:
“Considering the Horizon saga without considering the lawyering would be a bit like considering Watergate without considering the White House Tapes. Telling, perhaps vital information will be missing. The abuses of power. The injustice… who did it and why will not be properly understood. Sir, to discharge the inquiry’s remit you must do the equivalent of listening to those tapes.”
Marshall’s motivation
Paul Marshall is a barrister who used to represent Seema Misra, Janet Skinner and Tracy Felstead. His efforts (with others) in making the case for his clients’ and other Post Office prosecutions to be ruled an affront to the public conscience are well-documented. Mr Marshall remains highly motivated by this scandal and I suspect will be a useful participant in this inquiry. He raised several issues – the need for full disclosure of privileged material (of course), the “aggressive delay” the Post Office has deployed, stopping his former clients to receive timely justice, and the curious possible case of a conflict of interest with regard to Brian Altman QC, who both wrote the secret Altman Review back in 2013 and represented the Post Office during the Court of Appeal hearing in 2020 and 2021.
Dealing firstly with the delay to justice, Marshall said:
“Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
“Violation of the Article 6 right is separate from the issue of whether the trial was fair or an abuse of the process…. Tracy Felstead, Janet Skinner and Seema Misra had to wait a combined total of 44 years for their convictions to be quashed. Is that period excessive and unreasonable? It plainly is. It follows that their Article 6 rights, that are guaranteed by the state have been violated. Given that these rights are rights that are guaranteed and that have been violated is it not time that this be both acknowledged – and more importantly explained?… Tracy Felstead, Janet Skinner and Seema Misra by law are entitled to that acknowledgement and an explanation.”
On the Altman issue (previously alluded to by Prof Moorhead in a different document), Marshall says this:
“You will know from my brief written submission that Mr Simon Clarke [a barrister – author of the Clarke Advice on Disclosure and the Clarke Advice on Shredding] undertook a review of Mrs Misra’s criminal prosecution, I believe in early 2014. The stated purpose of his review of Mrs Misra’s prosecution was very limited. It was to consider whether the Second Sight report or the Helen Rose reports should be disclosed to Mrs Misra. The extraordinary thing about Mr Clarke’s review, is that Mr Clarke was not provided with the Post Office’s prosecution file. In his advice he records that he was only provided with transcripts of Mrs Misra’s trial…. Given the emergence of the “shredding advice” shortly before the Court of Appeal hearing, one is bound to enquire as to whether Mr Clarke had intentionally withheld from him the prosecution file. I have also referred to this in the context of Second Sight’s requests for prosecution files, that were refused, it seems by the Post Office’s General Counsel, [Chris] Aujard, and were the subject of the Select Committee hearing a year later. The second reason I refer to this, is that the very restrictive nature of the reviews of at least Mrs Misra’s prosecution is not, I think, well known. The Post Office has made much of having undertaken reviews of its prosecutions following the Clarke Advice in 2013. In the light of what I have said, there is an obvious, serious and substantial question of the thoroughness and completeness of those reviews. Had the Second Sight Interim Report been disclosed to Mrs Misra in 2013/2014 it would have put any competent lawyer on energetic inquiry. The only additional thing I shall say at this point, is that in Mr Clarke in early 2014 advising the Post Office against disclosing the Second Sight Interim Report to Mrs Misra, Mr Simon Clarke expressly relied upon the written advice of Mr Brian Altman QC.
The day after I received Mr Clarke’s advice in November 2020 I raised with Mr Altman the question as to whether, given an issue in the appeals was the adequacy of disclosure given by the Post Office and that he appeared to me to have advised the Post Office on its disclosure obligations in 2013, there might be an issue of an apparent conflict of interest.”
Why does all this matter? Here are excerpts from just two emails I have received from former Subpostmasters in anticipation of today’s hearing. One wrote:
“Today, for us all, is massive. I have fought for this for more years than I want to remember. A broken marriage, suicide attempts, no friends, no belief. no nothing…. I’m tired. I want justice… but the damage is done. My life was and is changed, that can never come back. My community, trust, working silly hours… all the people I lived for…. gone. I’m mentally exhausted. I want heads to roll. They lived behind their lies. They know who they are, as do we. So much is made of money. Forget it. We want people who knew what they were doing to feel our pain.”
The other said:
“I’m now a pensioner in ill health and live with my daughter. I really worry if anything happens to me, she will be on the streets homeless. We have to privately rent which she couldn’t afford on her own. I used to have such a beautiful house of our own before we bought a damn Post Office. Back then our house was sold for over 150k in 2003. Imagine what it would be worth now. My daughter is the one affected most by all this as we have had to move so many times. I just want some security for her. I’m a participant in the inquiry and hope it’s not dragged out for too long.”
There are still so many hidden victims in this scandal, hurting in silence. I hope Sir Wyn’s sudden urgency continues and drives this inquiry forward.
I am told a transcript of today’s hearing should be posted on the inquiry website tomorrow. Thanks for reading!
I have written a book called The Great Post Office Scandal, which will be in shops 18 November 2021. If you would like to buy a pre-sale copy, please click here. This is what people are saying about it:
Ian Hislop: “An extraordinary journalistic exposé of a huge miscarriage of justice.”
Mishal Husain: “The definitive account of the scandal.”
Rev Richard Coles: “A tale brilliantly told. I urge you to read it.”
Joan Bakewell: “Nick’s narrative has the power of a great thriller.”
10% of the book’s revenue will go into a fund help Subpostmasters who need help. More on this, soon…!
Once again, disclosure and privilege come to the fore
The perennial frustration with this scandal is the Post Office and government’s jealous guarding of documents which might provide evidence of serious wrongdoing. It has taken eight years to find out the Post Office Head of Security ordered the shredding of documents in 2013. What other secrets is the Post Office sitting on?
Tomorrow’s hearing, at the International Dispute Resolution Centre near St Paul’s Cathedral in London, is ostensibly set up to answer a few simple questions about the scope of the inquiry. Submissions provided in advance by everyone from Paula Vennells to the lawyers acting for 151 Subpostmasters answer those questions, and in doing so, sketch out the key battleground, which relates to disclosure of privileged material.
Some documents held by organisations and individuals are protected by legal professional privilege, usually communication passing between a client and their legal advisors. A court cannot ordinarily compel these documents to be disclosed. They can remain secret.
The inquiry chair, Sir Wyn Williams, wants to know if it is:
“necessary for the Inquiry to investigate whether and to what extent Royal Mail Group and Post Office Limited acted on legal advice when they formulated policies and guidelines on the civil and criminal liability of SPMs, managers and assistants alleged to be responsible for shortfalls shown by Horizon; and brought civil and/or criminal proceedings against SPMs, managers and assistants alleged to be responsible for shortfalls shown by Horizon?”
and
“if so, should the nature of the legal advice received be investigated?”
Pretty much everyone (including Paula Vennells, interestingly) thinks the answer to this should be a resounding “yes”. Pretty much everyone except the Post Office, that is. The Post Office is still considering its position. It tells the inquiry:
“section 22 of the Inquiries Act 2005 expressly provides that there is no power to compel the disclosure of evidence or documents which are the subject of legal professional privilege, reflecting the fundamental right of confidence in communications between a client and their lawyer.”
It notes:
“Unless POL were to waive privilege… then there effectively could not be any investigation into those issues, and no adverse inference could be drawn were POL to decline to waive privilege.”
It then tells the inquiry it is “already actively considering the issue of whether it should waive privilege (and, if so, to what extent)”, but it is unlikely that it will be able to do so, given the complexities involved, before the hearing on 8 November 2021.”
Howe and Co – the solicitors representing 151 Subpostmasters at the inquiry – saw this coming. First of all they submit that the inquiry: “should take a robust approach to any issues of privilege which arise from the investigation of this aspect of the scandal, or assertions of privilege made by any core participant”
Then they explain why:
“privilege in matters relating to prosecutions has already been waived to those Appellants in the Court of Criminal Appeals, in order to allow them to properly argue their cases and that, once waived, it would be illogical and impermissible to attempt to reclaim privilege. Further, we submit that POL has waived privilege in all cases dealt with before the civil and criminal courts. Any criminal acts or potential criminal acts uncovered in the course of this Inquiry, which concealed knowledge from the courts would, we submit, destroy any assertion of privilege.”
Hudgells, who represented the majority of Subpostmasters at the Court of Appeal in March, suggest Sir Wyn takes a look at the approach to privilege and disclosure outlined by Sir Brian Langstaff in the Infected Blood Inquiry, which states:
“Organisations may consider that some of the documents or information they hold are potentially covered by legal professional privilege (LPP). The right to assert LPP, which exists in civil proceedings, is preserved in the context of public inquiries by s.22(1) of the Inquiries Act 2005. That being said, this Inquiry is tasked with investigating matters spanning a period of over 50 years, and given the passage of time LPP and confidentiality issues will in many cases have been eroded. With this in mind, and having regard both to the commitment made in Parliament and to the fact that issues of candour, openness and cover-up form part of the areas for investigation by the Inquiry, I expect all government departments, public organisations and others providing documents and information to the Inquiry to give careful consideration to waiving LPP where this issue arises. Indeed, those that do not will be conspicuous for that reason.”
Howe and Co suggest a further hearing (presumably before Christmas) to deal with the issue of privilege, so that the Post Office and the position of the government can be winkled out and dealt with. I wouldn’t bet against that happening.
Watch the inquiry nearly live
As well as having its own website, the inquiry has a youtube channel, which will be screening tomorrow’s hearing with a short delay. I will be present and live-tweeting proceedings (here @nickwallis), though not as frantically as I have in previous court hearings due to its essentially televised nature. I will put up a report here after the day’s hearing is over.
The crowdfunded Post Office Trial website is being put into storage. This new website – postofficescandal.uk – will continue to report into the Post Office Horizon Scandal.
Hello and welcome to the first blog post of a new website dedicated to the Post Office Horizon IT Scandal.
It is an attempt to start pulling various strands of my work on this scandal together under a more relevant url. I have written a book, and I hope, very soon, to be able to link to a newly-launched charity called the Horizon Scandal Fund. The aim of the fund is to help Subpostmasters, Post Office workers and their families who have not been able to get adequate compensation for what they were put through.
This fund will help people with expert and legal advice, travel (to meetings, court or evidence sessions of the statutory inquiry), medical help, counselling, media and creative projects and basic hardships. 10% of the revenue from the book will be deposited into the fund.
Also, I set up Post Office Trial to cover the Bates v Post Office group litigation on Google’s blogger platform, which has no direct capacity for storing documents. Hopefully this new website will make that easier, though my knowledge of the Dark Arts of web wrangling is limited.
Going forward, I hope to document developments in the Post Office Horizon Inquiry and old Post Office Trial website remains active. If you want to find out more about this scandal, it’s not a bad place to start, though I would also thoroughly recommend the work of Karl Flinders on Computer Weekly. Karl has maintained a very useful timeline of this scandal.
This point did occur to me when Stein was outlining her role in the Network closure programme. Could it just…